IN THE CASE OF:	  

		BOARD DATE:  7 August 2012

		DOCKET NUMBER:  AR20120001969 


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:

	a.  correction of his records to show he elected transfer of his educational benefits to his spouse under the Post-9/11 GI Bill transferability program; and

	b.  the Bronze Star Medal (BSM) be added to this DD Form 214 (Certificate of Release or Discharge from Active Duty). 

2.  The applicant states:

	a.  before retirement he applied for a transfer of Post 9/11 benefits from himself to his wife.  The request was denied because he didn't have at least two years left on his contract.  He called the GI Bill Department and was advised that he had to wait until after he was retired before he could transfer the benefit to his wife.  After his retirement, he was told that the benefit should have been transferred before he retired.    

	b.  he was diagnosed with terminal cancer and wants his wife to be able to utilize this benefit and finish school before something happens to him.  

	c.  he was awarded the BSM.




3.  The applicant provides:

* Orders for the BSM
* DD Form 214 

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty from the U.S. Army Reserve on 13 August 2005 and served as a construction equipment repairer.  On 27 November 2011, he was retired in the rank of staff sergeant by reason of permanent disability.

2.  His DD Form 214 does not show the BSM as an authorized award. 

3.  Permanent Orders, dated 2 May 2006, show he received the BSM for meritorious service during the period 29 July 2005 to 30 July 2006.

4.  During the processing of this case, an advisory opinion was obtained from the Chief, Education and Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, dated 30 March 2012, who states, in summary:

	a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve.

	b.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent (on or after 1 August 2009).  The applicant's last day in military service was 
27 November 2011.  He would have been eligible to transfer the benefits if he transferred them before he left the service and informed that office of his approved Medical Evaluation Board (MEB) with a projected retirement date.  If that office had received the applicant's mandatory retirement order (prior to the effective date of 28 November 2011), that office would have approved his Transfer of Education (TEB) request and adjuster his TEB Obligation End Date to reflect his last day in service, 27 November 2011). 

	c.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse or at least 10 years of eligible service to transfer educational benefits to eligible children.  He had more than 10 years of service 


upon his retirement, so he was eligible to transfer benefits to either his spouse or children (if he completed the request after the MEB approval and prior to the effective date of retirement, 28 November 2011.

	d.  A Soldier may only transfer benefits to eligible dependents.  He had four eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System.  He did not complete the requirements in the TEB online database because he claims he was confused regarding the requirement to transfer prior to leaving service.  Although the requirement to resubmit the TEB request was explained, extenuating circumstances exist due to his disability and short-notice retirement.

	e.  A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  If the applicant had transferred his benefits prior to leaving military service (and within the timeframe after MEB approval and prior to retirement effective date), he would not have incurred an additional service obligation because his TEB Obligation End Date would have been adjusted to this last day in service, 
27 November 2011.

	f.  A Soldier must have no adverse action flag and have an honorable discharge to transfer benefits.  There is no evidence of an adverse action in the applicant's record.  He received an honorable discharge.

	g.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left military service during the implementation phase (first 90 days) of the program.  His last day in military service was 27 November 2011 which was not within 90 days after the program's implementation; however, his disability and short-notice retirement may have contributed to his not resubmitting the TEB request.

	h.  A Soldier must initially request to transfer benefits on the Department of Defense (DOD) TEB online database.  The TEB online database was operational on 29 June 2009.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for Department of Veterans Affairs (VA) access.  The respective dependent must then submit an application for VA educational benefits to request to use the benefits.  The applicant claims he was not aware of the requirement, so none of the required steps to transfer benefits were taken.

	i.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a Soldier leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits.  The TEB website shows the applicant initially submitted a TEB request on 15 August 2011; this request was disapproved because he had insufficient retainability (did not extend or reenlist to commit to the required additional service obligation).

	j.  The VA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA.  No evidence was provided by the applicant to show his dependents made a previous claim to the VA.  If the applicant is granted relief, the beginning date for his dependents to use the transferred benefits will be the date relief is granted unless previous specific claims were submitted to the VA (verified by the VA upon approval).

5.  The advisory official points out: 

	a.  the applicant initially submitted a TEB request on 15 August 2011.  That office disapproved his request on 16 August 2011 because he had insufficient retainability and emailed him with a complete explanation for the TEB request disapproval.  Later, the applicant emailed that office explaining he was assigned to a Warrior Transition Unit awaiting the results from an MEB.  Based upon this information, that office emailed him explaining the need for him to resubmit the TEB request within a specific future timeframe between the MEB approving his medical status/retirement and prior to the actual retirement date on his retirement orders.  

   b.  the applicant never resubmitted the TEB request.  However, two reasons may have contributed to his not resubmitting the TEB request:  (1) documents provided in his Army Review Boards Agency case show he was issued retirement orders on 22 November 2011, and was retired due to permanent disability on 28 November 2011 – only six calendar days, and (2) of the six calendar days, only two days were considered "duty days" due to the Thanksgiving Holiday week.  Although that office was manned during the Thanksgiving Holiday week and could have processed the applicant's request (if he had resubmitted), the applicant may not have had sufficient time to handle other urgent out-processing requirements.  This may have hindered him in providing a copy of his retirement orders to that office prior to his mandatory disability retirement on 28 November 2011.  

6.  The advisory official recommends approval of the applicant's request to transfer Post 9/11 GI Bill education benefits given the extenuating circumstances of his previous TEB request while in an MEB status (showing intent to transfer benefits) and the short-notice retirement (essentially 2 days).
7.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded on 
3 April 2012 and concurred with the opinion.

8.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational 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 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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  Orders show the applicant received the BSM.  His DD Form 214 should be corrected to show this medal.

2.  The evidence of record shows the applicant was fully eligible to transfer his educational benefits under the Post-9/11 GI Bill TEB Program prior to his retirement.

3.  The advisory opinion points out:

* the applicant's last day in military service was 27 November 2011
* he would have been eligible to transfer the benefits if he transferred them before he left the service and had informed that office of his approved MEB with a projected retirement date
* that office would have approved his TEB request and adjusted his TEB Obligation End Date to reflect his last day in service (27 November 2011) if they had received his mandatory retirement order prior to the effective date of 28 November 2011

4.  Per the advisory opinion recommendation, it would be appropriate to correct his military records to show he elected to transfer benefits under the Post-9/11 GI Bill Transferability Program to his eligible dependents prior to his retirement date.

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:

	a.  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 retirement, provided all other program eligibility criteria are met; and

   b.  adding the BSM to his DD Form 214.



      __________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)                                         AR20120001969





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ABCMR Record of Proceedings (cont)                                         AR20120001969



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