IN THE CASE OF:	

		BOARD DATE:	     3 January 2013

		DOCKET NUMBER:  AR20120001811


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, an exception to policy to show she elected to transfer her educational benefits in a timely manner in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

* she was led to believe that as long as she was actively serving on the benefit implementation date (1 August 2009) she could transfer her benefits to her children at any time of her choosing
* she never heard or read anything that said she must be in an active status to transfer her benefits to her dependents
* she was able to retire on 5 May 2009, but she instead chose to remain in an active status until “2 August 2009” in order to qualify for the educational benefits for her children

3.  In a separate attached statement the applicant states:

* she was a member of the Iowa Army National Guard (IAARNG) for over 20 years
* she served overseas in support of Operation Iraqi Freedom, so she is qualified for the Post-9/11 GI Bill
* she learned that education benefits could be transferred to dependents as long as the transferring Soldier is still in the military on 1 August 2009
* she was set to retire in May 2009 but waited until August 2009 so she would be able to transfer her education benefits to her children
* when she attempted to transfer a portion of her education benefits to her son, the system would not let her
* she then learned you must be in the service at the time of transfer
* nothing she had seen prior led her to know that – had she known that she would have transferred them the day she retired

4.  The applicant provides:

* a letter from her Member of Congress, detailing the results of his inquiry into her issue, with attached response letter from the Department of the Army, Office of the Deputy Chief of Staff, G-1, dated 4 January 2012
* a letter from another one of her Members of Congress, detailing the results of his inquiry into her issue, with attached response letter from the Department of Veterans Affairs (VA), dated 29 April 2010
* a Privacy Act waiver from the office of her Member of Congress
* several internet printouts from the VA's website
* her Post-9/11 GI Bill Certificate of Eligibility from the VA, dated 24 August 2009
* VA Form 4107 (Your Rights to Appeal Our Decision)
* VA Form 22-0338 (If You Need Help)
* several pages of e-mail traffic with various National Guard Bureau (NGB) and IAARNG officials regarding her issue 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the IAARNG on 5 May 1989.  She served through multiple reenlistments and/or extensions in various assignments of increased responsibility within the IAARNG and attained the rank/grade of staff sergeant (SSG)/E-6.

2.  Orders 245-032, issued by Headquarters, IAARNG, Office of the Adjutant General, dated 2 September 2009, discharged her from the IAARNG and transferred her to the U.S. Army Reserve Control Group (Retired Reserve), effective 1 August 2009.  The NGB Form 22 (Report of Separation and Record of Service) she was issued shows she was credited with the completion of             20 years, 2 months, and 27 days of net service, commencing on the date of her enlistment.

3.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible individual 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 for 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.

4.  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.

5.  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.  The applicant contends her records should be corrected to allow her to transfer her educational benefits to her dependents under the TEB provision of the Post-9/11 GI Bill.

2.  The available evidence shows she was fully eligible to transfer her educational benefits under the TEB provision of the Post-9/11 GI Bill prior to retirement, but she did not make application to do so prior to her retirement.

3.  The program was implemented on 1 August 2009.  The Army, DOD, and VA conducted a massive public information 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.  Soldiers needed to meet two criteria to qualify to transfer benefits to an eligible dependent:  (a) they must be on active duty or a member of the Selected Reserve at the time of the transfer (provided the Soldiers do not have an adverse action flag) and (b) they must have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of request unless retirement eligible.

4.  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 by heavy use of the DOD website and the lack of proper log-in credentials for those who had signed out on transition leave within 90 days of the program implementation, as well as by a lack of familiarity with TEB provision policies by education centers and separation counselors.

5.  The applicant was discharged from the ARNG on 1 August 2009.  It is reasonable to conclude that had she known of the procedure to transfer her benefits while still and active member of the IAARNG, she would have done so.  Therefore, as a matter of equity her records should be corrected to show she timely filed an application to transfer her educational benefits in accordance with the Post 9/11 GI Bill prior to her 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 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 her application and the Army approved her request to 

transfer Post-9/11 GI Bill benefits to her dependent child 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)                                         AR20100025000



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ABCMR Record of Proceedings (cont)                                         AR20120001811



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