IN THE CASE OF:	  

		BOARD DATE:  12 July 2012

		DOCKET NUMBER:  AR20120001632 


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, in effect, correction of his records to show he applied for the Post-9/11 GI Bill Transferability Program in order to transfer his education benefits to his dependents before he left active duty on 27 September 2009. 

2.  The applicant states after going on three deployments between 2003 and 2009, he last left active duty in September 2009 and retired three months later.  He claims at the time he last left active duty the program was new and information on transferring benefits was not available.  

3.  The applicant provides the following documents in support of his application:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* Release from Active Duty (REFRAD) orders

CONSIDERATION OF EVIDENCE:

1.  On 19 January 2007, he was notified that he had completed the required years of qualifying service and was eligible for retired pay at age 60.  

2.  The record contains Installation Management Command, United States Army Garrison, Fort McCoy, Wisconsin Orders 229-1069, dated 17 August 2009, which directed his REFRAD on 27 September 2009.  

3.  On 27 September 2009, the applicant was REFRAD at Fort McCoy, Wisconsin.  The DD Form 214 he was issued at the time shows he held the rank of sergeant first class/E-7.  On 1 November 2009, the applicant transferred to the Retired Reserve.  

4.  During the processing of this case an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command (AHRC) who recommends approval of the applicant's request and that administrative relief be provided based on the fact he was transferred to the Retired Reserve within 90 days of implementation of the 9/11 GI Bill transfer of benefits program.  She indicates that although significant measures were taken to disseminate the information to all Soldiers within Army components during the initial phase of the program, many Soldiers who left service or started transition leave during the first 90 days of the program were not fully award of the requirement to transfer prior to leaving military service.  

5.  On 16 March 2012, the applicant was provided a copy of the AHRC advisory opinion in order to have the opportunity to reply to its contents.  To date, he has failed to respond.  

6.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public 
Law 110-252, House of Representatives, 2642.  In July of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

7.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.
8.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning on 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732:

	a.  service members eligible for retirement on 1 August 2009 – no additional service required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

   d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;

   e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and

	f.  active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his record be corrected to show he applied for and the Army approved transferring his benefits under the Post-9/11 GI Bill to his dependents prior to his REFRAD and transfer to the Retired Reserve has been has been carefully considered and is found to have merit.

2.  The Post-9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level.  As confirmed in the AHRC advisory opinion specific guidance on the requirement to apply for the benefit prior to leaving military service was not fully available to members who transitioned within the first 90 days after implementation of the program on 
1 August 2009.



3.  The evidence of record confirms the applicant was REFRAD on 
27 September 2009, and transferred to the Retired Reserve on 1 November 2009, within 90 days of implementation of the program.  In view of the fact that transfer application procedures were not fully implemented at the time the applicant was REFRAD, it would serve the interest of equity to correct his record to reflect he applied to transfer his education benefits under the Post-9/11 GI Bill transferability provision upon implementation of the program while still on active duty as recommended in the AHRC advisory opinion. 

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 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 Post-9/11 GI Bill benefits to his dependents prior to his REFRAD and retirement, provided all other 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)                                         AR20120001632



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ABCMR Record of Proceedings (cont)                                         AR20120001632



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