IN THE CASE OF:	  

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120003286 


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 he applied for the Post-9/11 GI Bill Transferability Program to transfer his education benefits to his family members before he retired on 31 August 2009.

2.  The applicant states he was not informed of the Post-9/11 GI Bill prior to his retirement.  He goes on to state he signed out on permissive temporary duty (TDY) from 26 May 2009 to 14 June 2009 and then transition leave from 15 June 2009 to 31 August 2009, during which time he relocated to the San Antonio, TX area.  In October 2009, a friend of his told him about the Post-9/11 GI Bill program so he checked it out and found that he had to be on active duty to effect the change.  He also states that had he been informed of the program he would have made the change before he retired.

3.  The applicant provides:

* a self-authored letter, dated 3 February 2012
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DD Form 2648 (Preseparation Counseling Checklist), dated 6 March 2009 with an anticipated separation date of 1 September 2009
* his clearance from the Fort Bliss, TX Education Center, dated 10 March 2009


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 10 August 1989.  He completed his training as a medical laboratory specialist and he remained on active duty through a series of continuous reenlistments.  He was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 1 April 2006.

2.  On 31 August 2009, he was retired by reason of sufficient service for retirement and he was transferred to the Retired List effective 1 September 2009. He completed 20 years and 21 days of creditable active service.

3.  In the processing of this case, on 27 March 2012, a staff advisory opinion was obtained from the Human Resources Command at Fort Knox, KY.  The advisory official opined 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 family members at the time.

4.  On 28 March 2012, the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 30 March 2012, by email, the applicant concurred with the advisory opinion.

5.  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 that went into effect on 1 August 2009.

6.  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 RA 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.

7.  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 family members.  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 for correction of his records to show he applied for and the Army approved transferring his education benefits under the Post-9/11 GI Bill to his family members prior to retirement on 31 August 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 is reasonable to presume that given the close proximity of the applicant's retirement (31 August 2009) to the effective date of the Post-9/11 GI Bill (1 August 2009) that he was not properly briefed on application procedures.  Therefore, 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:

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 eligible family members prior to his 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)                                         AR20120003286



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ABCMR Record of Proceedings (cont)                                         AR20120003286



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