BOARD DATE:	     9 October 2012

		DOCKET NUMBER:  AR20120001157 


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 reconsideration of his earlier request for correction of his military records to show he transferred his Montgomery GI Bill (MGIB) benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill Benefits.

2.  The applicant states:

* he is unfairly being denied an important earned benefit based on what turned out to be a computer "discrepancy" issue in the Defense Enrollment Eligibility Reporting System (DEERS)
* the Board declined to note the crucial point that the "data overlap" in DEERS did not allow the on-line system to complete the transfer of benefits
* he questions whether the Board contacted the DEERS customer service representative who advised him of the computer issue or if a forensic analyst or expert was consulted
* he outlined the steps and procedures he used in attempting to complete the on-line enrollment process
* his forensic data shows he accessed the appropriate Department of Veterans (VA) website; yet this information was dismissed
* he put the question, "Why would I access the website and not attempt transfer when that was the purpose for entering the site?" to the Board


3.  The applicant provides:

* self-authored statements
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings Docket Number AR20100029341, dated 7 July 2011
* memorandum, U.S. Army Physical Disability Agency, Washington, DC, dated 23 July 2010, subject:  Permanent Physical Disability Retirement
* Orders 09-188-00001, Headquarters, 96th Regional Readiness Command, Salt Lake City, UT, dated 7 July 2009 
* letter, VA, dated 30 November 2011
* VA Certificate of Eligibility, dated 19 January 2010
* Certificate of Retirement
* rebuttal letter, dated 15 June 2011, with enclosures

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100029341 on 7 July 2011.

2.  As a new argument, the applicant states he is being unfairly denied an important, earned benefit based on a computer "discrepancy" issue in DEERS.  He used proper procedures; however, the drop-down box with family member names failed to appear, despite being told by his unit and other agencies that he and his family were inscribed in DEERS and his eligibility was verified.

3.  On 7 July 2009, the applicant was serving as a U.S. Army Reserve (USAR) colonel when orders were published transferring him to the USAR Control Group (Retired) effective 30 September 2009.  Subsequently, the orders were revoked.

4.  The applicant was issued a Certificate of Eligibility for educational benefits under the Post-9/11 GI Bill on 19 January 2010.

5.  On 3 August 2010, a physical evaluation board (PEB) convened and determined the applicant was physically unfit for continued service and recommended his permanent disability retirement with a 50-percent disability rating.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

6.  On 27 August 2010, the applicant was medically retired by reason of physical disability with a 50-percent disability rating.  He completed 20 years, 9 months, and 5 days of creditable active military service for pay purposes.

7.  During the processing of ABCMR Docket Number AR20100029341, an advisory opinion obtained from the Office of the Deputy Chief of Staff, G-1, stated in effect, that the Department of Defense TEB website was operational on 29 June 2009 and the applicant was retired in August 2010, a year after the program was implemented.  

   a. Officials in the G-1 opined that the applicant should only be granted administrative relief if he could show proof that he attempted to transfer his benefits prior to his retirement date or that DEERS did not have his dependents registered.

   b. Although the applicant stated the drop down box for his dependents would not appear, the TEB online database shows he had four eligible dependents enrolled in DEERS.  He had adequate eligible service at the time he claimed to attempt his transfer of benefits and would not have incurred additional service obligation.
   
   c. Officials also noted that the applicant contacted the office of the G-1 in November 2010 after he had retired.

8.  The advisory opinion was provided to the applicant for comment and he responded with a three-page letter explaining the sequence of events that occurred.  He provided the name and number for a customer care representative with DEERS who advised him there was a "data discrepancy" or conflicting information within his records which was likely the cause of his problems at the VA website.  He also provided a letter from a computer forensic specialist who examined his computer and provided results that show the agencies the applicant accessed with his computer.  The forensic specialist stated a review of the applicant's internet history files revealed previous attempts to access various va.gov websites, including the www.gibill.va.gov website, on several occasions dating back to 26 December 2009.  (The www.gibill.va.gov website also contains a link to the TEB website.)

9.  The order revoking the applicant's 2009 retirement is not available for review.

10.  Public Law 110-252, section 3319, dated 22 June 2008, authorized the transfer of unused educational benefits to family members.  The law provided, in effect, that the Secretary of Defense would prescribe the implementation of the program.  It also provided that eligible participants must be serving as a member of the Armed Forces when the transfer is executed.

11.  On 22 June 2009, the Office of the Under Secretary of Defense released Directive-Type Memorandum 09-003, subject:  Post-9/11 GI Bill, which announced that individuals serving in the Armed Forces could affect the transfer of GI Bill benefits effective 1 August 2009.

12.  The TEB website at https://www.dmdc.osd.mil/TEB is the site Soldiers must use to transfer Post-9/11 GI Bill benefits to their eligible dependents.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his earlier request for correction of his military records to show he transferred his MGIB benefits to his dependents under the TEB provision of the Post-9/11GI Bill was carefully considered.

2.  The applicant states the drop-down box with family member names failed to appear on the website; however, officials from the Office of the Deputy Chief of Staff, G-1, stated the TEB website was operational.

3.  Orders placed the applicant's name on the Retired List on 2 August 2009 and data files were subsequently updated showing this status.  However, due to medical reasons, these orders were revoked and the applicant was eventually retired due to medical reasons on 27 August 2010.  Further, he provides forensic evidence showing he accessed the www.gibill.va.gov website on several occasions prior to his August 2010 retirement, presumably to transfer his benefits.

4.  Although the orders revoking his 2009 retirement are not on file, it is unclear whether or not DEERS was updated in a timely manner.  Therefore, any doubt should be resolved in favor of the applicant and his records should be corrected to show he made a timely election to transfer his Post-9/11 GI Bill educational benefits prior to the effective date of his August 2010 retirement.

BOARD VOTE:

___x_____  ____x____  ___x__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20100029341, dated 7 July 2011.  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 Post 9/11 GI Bill benefits to his family members prior to his 2010 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)                                         AR20120001157



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ABCMR Record of Proceedings (cont)                                         AR20120001157



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