IN THE CASE OF:	  

		BOARD DATE:  5 July 2012

		DOCKET NUMBER:  AR20120000935 


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 transfer of his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his daughter for college.

2.  The applicant states he left the Army within 90 days of the implementation of the transferability of the Post 9/11 GI Bill benefits.  When he was on active duty he was diagnosed with post-traumatic stress disorder (PTSD).  He was suffering from the effects of PTSD as he was transitioning out of the Army and did not transfer the benefits for his daughter.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); a list of his overseas assignments; and a Department of Veterans Affairs (DVA) rating decision, dated 5 April 2011.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 3 August 1989 and he held military occupational specialty 63Z (Mechanic Maintenance Supervisor).  He served in staff and leadership positions and attained the rank/grade of first sergeant (1SG)/E-8.

2.  On 6 August 2009, he underwent a pre-separation briefing wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits 


(Montgomery GI Bill (MGIB)) of his DD Form 2648 (Preseparation Counseling Checklist) in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

3.  On 31 August 2009, he was retired by reason of sufficient service for retirement and he was placed on the Retired List in the rank/grade of 1SG/E-8 on 1 September 2009.  He completed 20 years and 28 days of creditable active service.

4.  In the processing of this case, on 5 March 2012, an advisory opinion was received from the Office of the Deputy Chief of Staff, G-1.  The advisory official recommended approval of the applicant's request because the applicant left the military within 90 days of implementation of the program.  This official also stated the individual must:

	a.  Have been in an active duty status or in the Selected Reserve on or after 
1 August 2009.  The applicant retired on 31 August 2009.  He would have been eligible to transfer the benefits before he retired.

	b.  Have 6 years of eligible service to transfer the benefits to a spouse and 
10 years to transfer the benefits to eligible children.  The applicant had over 20 years of service upon his retirement so he was eligible to transfer the benefit if he had completed the request before he left the service.

	c.  Have eligible family members enrolled in the Defense Eligibility Enrollment Reporting System (DEERS).  Children lose eligible family member status upon turning 21 years of age, or at marriage.  Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried.  The applicant had two eligible family members (two children) enrolled in DEERS.

	d.  Initially request the transfer through the Department of Defense (DOD) TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the DVA.  Once the benefits are transferred, children may use the benefit up to the age of 26.  The applicant did not complete the requirements in the TEB online database because he claims he was not aware of the requirement to transfer prior to leaving the service.

5.  The advisory official also stated that a Soldier should not be granted relief based on unawareness of the law, program, rules, or procedures, unless they left 


the service during the implementation phase (first 90 days of the program).  The applicant's last active duty date was 31 August 2009 which was within 90 days after the program's implementation.

6.  The advisory official further stated that changes to the number of months allocated to family members can be made anytime to include once a member leaves the military, provided the member allocates at least 1 month of benefits prior to separation.  If the member allocates zero months and subsequently leaves military service, the member is not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

7.  The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  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 an eligible family member is 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 the maximum amount of time allowed by such policy or statute; or

	c.  is or becomes retirement eligible during the period 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.  The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his education benefits under the TEB prior to retirement but he did not do so.  The program was implemented in July 2009.  He retired on 31 August 2009.  Prior to retirement, he did not apply for the transfer of benefits while on active duty.

2.  The DOD, the DVA, 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.  A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent.

3.  Nevertheless, during the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  The applicant's retirement date was 31 August 2009.  It is reasonable to presume that had he been aware of the procedure to transfer his benefits while in an active duty status he would have done so.  Therefore, as a matter of equity, his records should be corrected to show he did so in a timely manner prior to his effective date of retirement.


BOARD VOTE:

___X____  ___X____  ___X ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer his Post 9/11 GI Bill benefits to his eligible family members prior to retirement, provided all other program eligibility criteria are met.



      _______ _   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)                                         AR20120000935



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ABCMR Record of Proceedings (cont)                                         AR20120000935



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