IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120003999 


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 an exception to policy under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to transfer education benefits to his dependents.

2.  The applicant states he did not have a full understanding of the timeline and guidance for the TEB provisions of the Post 9/11 GI Bill to his dependents.  He requests that his Post 9/11 GI Bill be equally transferred to his dependents.

3.  The applicant does not provide additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  After having had prior Regular Army service, the applicant again enlisted in the Regular Army on 7 October 1992.  He served in various noncommissioned officer positions within and outside the continental United States, and he attained the rank/grade of staff sergeant (SSG)/E-6.

2.  There is no evidence in the applicant's military service records that shows he applied to the Department of Veterans Affairs (DVA) for education benefits for the Post 9/11 GI Bill benefits.

3.  In preparation for his upcoming retirement, the applicant's record shows he underwent a pre-separation briefing on 21 December 2009 wherein he checked the "No" block in item 13a (Education/Training - Education Benefits (MGIB)) of his DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members).  Items checked "Yes" means it is mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

4.  The applicant was honorably retired on 30 April 2010 and he was placed on the Retired List in his retired rank/grade of SSG/E-6 on 1 May 2010.  He completed 21 years, 4 months, and 25 days of creditable active service.

5.  In the processing of this case, on 27 March 2012, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, who recommended disapproval of the applicant's request.  The official stated the applicant is not eligible to transfer benefits under the Post - 9/11 GI Bill transferability program because Army and Department of Defense (DOD) policy requires a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits.  These policies are based on requirements established by law.  The Army does not have the legal authority to grant an exception to policy that would allow those who retired or separated from the Army to transfer Post - 9/11 GI Bill benefits.  The official further stated the opinion is based on legal authority outlined in Public Law 110-252, section 3319(b).

6.  The applicant was provided with a copy of this advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He responded on 1 May 2012, stating "In all due respect, I'm not blaming anyone but myself for being uninformed concerning transferring my G.I. bill to my dependents prior to the timeline that was given before my retirement date.  I accept full responsibility of failing to ensure my family with all the benefits due to them but I just didn't know.  I'm not making any excuses for myself, howbeit, I'm making an appeal to the ABCMR to take in consideration that I'm requesting on behalf of myself and family that my G.I. bill be equally transferred amongst my dependents."

7.  On 22 June 2009, 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.

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

9.  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 on the administration of the program.  The policy states, in 
part, that those who retire on or before 1 August 2009 are, by law, not eligible to 
transfer unused Post - 9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to allow him to transfer his educational benefits to his family members under the TEB provision of the Post-9/11 GI Bill based on an exception to policy.

2.  The available evidence shows the applicant was fully eligible to transfer his education benefits under the TEB prior to retirement but did not do so.  The program was implemented in July 2009.  The applicant retired on 30 April 2010.  He did not apply for the transfer of benefits while on active duty.

3.  DOD, the DVA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet two criteria to qualify to transfer benefits to an eligible dependent:  (a) be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided Soldier does not have an adverse action flag) and (b) have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of request, unless retirement eligible.  

4.  The applicant's faithful service and his sincerity are not in question.  However, the TEB was implemented on 20 July 2009.  He retired on 30 April 2010, 
9 months after the program was implemented.  He had plenty of time to submit his application while on active duty.  There is no evidence he did so.  Therefore, he is ineligible to transfer benefits. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20120003999



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ABCMR Record of Proceedings (cont)                                         AR20120003999



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