IN THE CASE OF:	  

		BOARD DATE:  24 July 2012

		DOCKET NUMBER:  AR20120002023 


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 to transfer his education benefits to his dependents before he was retired on 30 September 2009.

2.  The applicant states that he was remotely stationed at the University of Southern Mississippi in Hattiesburg, Mississippi from 2005 until his retirement and was not aware that he was eligible for transfer of his Post 9/11 GI Bill to his dependents.  He further states that he attended his transition processing at Fort Lewis, Washington on 23 June 2008 and his retirement physical and briefing at Fort Rucker, Alabama from 21 – 23 May 2009 and was never briefed on the transfer of benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), his retirement orders, his pre-separation counseling checklist, and birth certificates for his dependents.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned at the U.S. Military Academy at West Point, New York and entered active duty on 27 May 1987.  He served on active duty until he was retired on 30 September 2009 in the rank of lieutenant colonel (LTC) and was transferred to the Retired List effective 1 October 2009.  He had served 22 years, 4 months and 4 days of active service.

2.  In the processing of this case a staff advisory opinion was obtained from the Human Resources Command at Fort Knox, Kentucky, which opined that the applicant’s request should be approved because he left the service within
90 days of implementation of the program and he was eligible to transfer his benefits to his children at the time.  

3.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board. 

4.  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.

5.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute the 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.

6.  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 education benefits under the Post-9/11 GI Bill to his dependents prior to retirement on 30 September 2009 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.

3.  However, it appears reasonable to presume given the close proximity of the applicant's retirement (30 September 2009) to the effective date of the Post-9/11 GI Bill (1 August 2009), 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 provision.

BOARD VOTE:

___X ___  ___X____  ___X  ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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 education benefits to his dependents prior to his retirement, provided all other eligibility criteria are met.

2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Global War on Terrorism are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.






      __________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)                                         AR20120002023





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ABCMR Record of Proceedings (cont)                                         AR20120002023



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