IN THE CASE OF:

		BOARD DATE:  16 August 2012

		DOCKET NUMBER:  AR20120003550 


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 her military records to show she transferred her educational benefits to her dependent daughter under the 
Post-9/11 GI Bill.

2.  The applicant states:

	a.  She did not know she had not completed the administrative requirements to transfer the benefits prior to her 31 August 2009 retirement.

	b.  She was taking terminal leave from 1-31 August 2009.  Prior to that time there was no confirmation that she would be authorized to transfer her benefits because of the date of her retirement.  No agency (Department of Veterans Affairs (VA), education center, retirement office), could confirm or advise as to whether she had the option because the bill was not finalized.

	c.  She attempted to transfer her benefits on the Department of Defense Transfer of Education Benefits (TEB) website.  She did not realize that she had not successfully completed the transfer until her retirement date when she entered the website to learn more about the procedures.

	d.  Later she learned she had not correctly completed the transfer.  She attempted to adjust the dates and was unable to do so.  No one was able to assist her; the lack of information, guidance, and knowledgeable advisors led to her loss of the benefits.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Knowledge Online (AKO) Web Mail correspondence
* email correspondence
* letters to her Congressman and Senator

CONSIDERATION OF EVIDENCE:

1.  After completing over 20 years of active duty service, the applicant retired from the Regular Army on 31 August 2009.

2.  During the processing of this case, a favorable advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, dated 27 December 2011.  The opinion recommended granting relief to the applicant because she was separated from active duty within 90 days of the Post-9/11 GI Bill Transferability Program implementation on 1 August 2009.  The advisory official acknowledged that many Soldiers who left military service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving active service.  The advisory official stated:

	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of TEB to his/her dependent on or after 1 August 2009.  The applicant's last day of active duty service was 31 August 2009.  Therefore, she would have been eligible to transfer her educational benefits while still on active duty.

	b.  The applicant was eligible to participate in the program and she had dependents eligible to receive those benefits.

	c.  The applicant had more than 20 years of service when she retired; therefore, she would not have incurred an additional service obligation.  Further, she had no record of adverse action.

3.  On 17 April 2012, a copy of the advisory opinion was sent to the applicant for her for information and an opportunity to submit comments and/or rebuttal.  She did not respond.

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 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 educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The Department of Veterans Affairs 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 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, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.

6.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 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 is required.

	b.  Service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service is required.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests approval of TEB under the Post-9/11 GI Bill to transfer her educational benefits to her dependent daughter.

2.  The applicant had over 20 years of service upon her retirement, no additional service requirement, no evidence of any adverse action, and she would have been eligible to transfer the benefits if she had done so before she left the service.

3.  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 with heavy use of the Department of Defense website and the lack of proper log-in credentials for those who may have signed out on transition leave within 90 days of the program implementation.  Similarly, officials at some education centers may also have been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  Her retirement date was 31 August 2009.  In view of the fact that Soldiers who left military service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving active service, it would serve the interest of equity to correct her record to reflect she transferred her educational benefits while still serving on active duty as recommended in the U.S. Army Human Resources Command advisory opinion.

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 both timely and accurately and that the Army approved her request to transfer Post-9/11 GI Bill benefits to her dependents 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)                                         AR20110019081



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ABCMR Record of Proceedings (cont)                                         AR20120003550



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