BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20110025221 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an exception to policy to transfer educational benefits under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill to his family member.

2.  The applicant states:

* There was no information given to Soldiers regarding the Post 9/11 MGIB to its transfer while on active duty
* He was an infantryman in the Army National Guard (ARNG); he served in combat but was never given the same treatment as active duty Soldiers

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Marine Corps, the applicant enlisted in the ARNG on 18 October 1995 and he held military occupational specialty 11C (Indirect Fire Infantryman).  

2.  He served through multiple extensions in a variety of assignments, including an active duty tour from February 2005 to January 2006 and from September 2007 to February 2008, and he attained the rank/grade of staff sergeant (SSG)/E-6.

3.  On 28 October 2004, his state ARNG issued him a Notification of Eligibility for Retirement at Age 60 (20-year letter).

4.  On 24 October 2011, his state ARNG published official orders discharging him from the ARNG and transferring him to the Retired Reserve effective 1 November 2011. 

5.  He was honorably discharged from the ARNG and transferred to the Retired Reserve on 1 November 2011.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed over 27 years of service for pay.  

6.  On 13 September 2012, an advisory opinion was obtained from the NGB.  An NGB official recommended disapproval of his request because his discharge date was not within a 90-day window of program implementation.  The official stated:

	a.  Public Law 110-252, as amended by Public Law 111-377, identifies the qualifications to receive the Post-9/11 GI Bill, one of which is that the service member must have served on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill.  Public Law 110-252 establishes legal requirements on the transferability of unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.

	b.  the ARNG, DOD, and the Department of Veterans Affairs (VA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits.  Although significant measures were taken to disseminate the information to all Soldiers during the initial phase of the program, many Soldiers who left service during the first 90 days of the program were not fully aware of the requirements to transfer prior to leaving the military.  The Soldier retired well over 90 days after program's implementation.

	c.  the applicant's last day in the service was 31 October 2011 which was not within the 90-day window of the program implementation.  

	d.   the ARNG Personnel, Programs, Resources, and Manpower Division (PPRMD) indicate their office reviewed the applicant's available records and recommends administrative relief.

	e.  The State concurs with the recommendation [to deny relief].

7.  The applicant was provided with a copy of this advisory opinion but he did not respond.  

8.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of the individual’s request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill; and 

	a.  has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or

	b.  has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute, or

	c.  is or becomes retirement eligible during the period from 1 August 2009 through 1 August 2013.  A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of reserve service.

9.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

10.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  

DISCUSSION AND CONCLUSIONS:

1.  There is insufficient evidence that shows the applicant submitted a request to transfer the education benefits to his family member(s) while in the Selected Reserve.  

2.  The DOD, VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  While there may have been some confusion during the early stages after the implementation, the applicant did not retire until more than 2 years after the program was implemented.

3.  The applicant's service and his sincerity are not in question.  However, as the applicant had been in the Selected Reserve since the program was implemented in August 2009, and over 2 years after the program was implemented, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  There is neither an error nor an injustice in the applicant's transfer of benefits processing.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x__  ____x____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  x _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20110025221





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ABCMR Record of Proceedings (cont)                                         AR20110025221



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