IN THE CASE OF:	  

		BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120003969 


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 transferred his Post-9/11 GI Bill benefits to his children.

2.  He states instructions were not fully disseminated when he cleared his last duty station; moved away from Fort Leavenworth, KS; and transitioned to civilian life in August 2009.  Attempts to effect transfer of his Post-9/11 GI Bill benefits prior to and after his retirement were unsuccessful.  When he attempted to access the website prior to his retirement, he was unable to gain access.  When he was finally able to gain access after his retirement, he was unable to transfer his benefits.

3.  He states when he cleared the Fort Leavenworth Education Center on 7 August 2009, the staff informed him he was eligible for the new Post-9/11 GI Bill and could transfer the benefits to his children.  The staff member could not provide details on how to transfer the benefits at that time since the program was new, but assured him he was eligible and could make the transfer later.  She did not inform him he had to make the transfer before he retired, nor did she inform him he had to apply for the certificate of eligibility before he could make the transfer.  He had more than 26 years of service upon retirement, had no additional service requirement, had no adverse actions, and would have been eligible to transfer the benefits to his children had he done so before he retired.

4.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), Outprocessing Status Summary, Department of Veterans Affairs Certificate of Eligibility, and correspondence his Member of Congress received from the Office of the Deputy Chief of Staff, G-1.

CONSIDERATION OF EVIDENCE:

1.  On 30 November 2009, the applicant retired in the rank/grade of colonel/O-6 after completing 26 years, 6 months, and 10 days of active service.

2.  He provides an Outprocessing Status Summary showing he cleared numerous offices at his final installation, including the Education Center, in August 2009.

3.  During the processing of this case, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, dated 18 April 2012, who recommended approval of the applicant's request.  The advisory official states, in part:

* the applicant's last day in military service was 30 November 2009 and he was eligible to transfer his Post-9/11 GI Bill benefits before he retired
* based on his more than 20 years of service, he was eligible to transfer his benefits to his spouse or children prior to his retirement
* he did not complete the requirements in the Transfer of Education Benefits online database because he claims he was not aware of the requirement for transfer prior to leaving military service
* had he transferred his benefits prior to leaving military service, he would not have incurred an additional service requirement because he had more than 20 years of service
* a Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless the Soldier left the service during the implementation phase (first 90 days) of the program
* the applicant's last day in military service was not within 90 days after the program's implementation; however, he was counseled and on terminal leave for retirement within 90 days of the program's implementation
* he took none of the steps required to transfer benefits

4.  The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  In a letter received on 9 May 2012, he indicated, in effect, he concurred with the advisory opinion.

5.  On 22 June 2009, Department of Defense (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.

6.  The policy further states the Secretaries of the Military Departments will provide counseling on the benefits under the Post-9/11 GI Bill to active duty participants and members of the Reserve Components with qualifying active duty service prior to separation or release from active duty, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant retired on 30 November 2009.  His retirement was not within 90 days of the implementation of the program authorizing transfer of Post-9/11 GI Bill benefits; however, the available records show he cleared his final installation, a process that included counseling by the Education Center, in August 2009 shortly after implementation of the program.  Having cleared the installation, he was on transition leave, at which point he would not have had ready access to information on the process for transferring his benefits.

2.  In view of the available evidence and the advisory opinion, it would be appropriate to correct his records to show he submitted a timely request to transfer his Post-9/11 GI Bill benefits to his children prior to his retirement.




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 Post-9/11 GI Bill benefits to his eligible family members prior to his 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)                                         AR20120003969



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003969



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1