BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120002947 


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 correction of his records to show his educational benefits were transferred to his eligible dependents in a timely manner in accordance with the Transfer of Education Benefits (TEB) provision of the 
Post-9/11 GI Bill.

2.  He states that during the transition process in May 2009 he visited the education center and understood that the Post-9/11 GI Bill had been approved for implementation and he would be able to transfer his benefits to his children.  However, he was counseled by the education center/benefits counselor that the procedure to make the transfer had not been established.  He was advised by a gentleman at the education center to wait until his oldest son's senior year of high school (2012) and then apply to transfer his benefits since it would also require some coordination with the college he planned to attend.  He departed Hawaii on permissive temporary duty/transition leave from 12 May 2009 until 31 August 2009.  Upon his son entering his senior year, he started checking on how to transfer his GI Bill benefits and discovered the implementation procedures for the Post-9/11 GI Bill were announced sometime in August 2009.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and miscellaneous separation out-processing documents.

CONSIDERATION OF EVIDENCE:

1.  He was retired from the Regular Army for length of service on 31 August 2009 after completing more than 21 years of active duty.

2.  Orders 348-0003, dated 13 December 2008, published by the U.S. Army Garrison-Hawaii, show he was scheduled to report to the U.S. Army Transition Center on 8 May 2009.

3.  On 27 March 2012, an advisory opinion was obtained in the processing of this case.  The Department of the Army Office of the Deputy Chief of Staff, G-1, recommended administrative relief for the applicant because he left the active duty within 90 days of the implementation of the program.  The advisory opinion indicated a Soldier should not be granted relief based on unawareness of the law, program, rules, or procedures unless he or she left the service during the implementation phase of the program (first 90 days).

4.  The applicant was provided a copy of this advisory opinion for comment.  He did not respond.

5.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational 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.

6.  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 for the administration of the program.

	a.  a Soldier must initially request to transfer benefits on the DOD's TEB online database.  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 family member must then submit an application for VA educational benefits (VA Form 22-1990e (Application for Family Member to Use Transferred Benefits)) to request to use the benefits; and

	b.  changes to the number of months allocated to family members can be made at anytime, to include once the Soldier leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.

DISCUSSION AND CONCLUSIONS:

1.  The program was implemented on 1 August 2009.  The available evidence shows he was eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to retirement.

2.  The applicant's retirement date was 31 August 2009.  In view of the fact that the Post-9/11 GI Bill Transferability Program was a new program, it is not unreasonable to presume there were differing interpretations of the implementing instructions by the education counselors at installation level at the onset of implementation.  He did not complete the requirements to apply to transfer educational benefits in the TEB online database.  Due to his transition from military service in the May-August 2009 time frame, it is particularly plausible that he was unaware of the requirement to complete an application to transfer his educational benefits while he was still on active duty.

3.  Therefore, in the interest of equity, it would be appropriate to correct his record to reflect he applied to transfer his educational benefits under the 
Post-9/11 GI Bill Transferability Program prior to 31 August 2009.

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 his Post-9/11 GI Bill benefits to his dependent(s) 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)                                         AR20120002947



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ABCMR Record of Proceedings (cont)                                         AR20120002947



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