IN THE CASE OF:	  

		BOARD DATE:  25 September 2012

		DOCKET NUMBER:  AR20120004749 


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 approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to his spouse and children.

2.  The applicant states, in effect, that he was not aware that he had to transfer the education benefits while still on active duty.  Just prior to his retirement he was selected to fill a Senior Executive Staff (SES) position and he was encouraged to begin his terminal leave and concurrently begin his duties in the civilian position.  He contends he was never informed by either the Department of Veterans Affairs (VA) counselor or Fort Detrick's military personnel branch that he had to transfer the newly-enacted educational benefit to his children while still on active duty.  Further, this information was not included in any of the retirement material he was given, which in fact all pre-dated the enactment of the transfer benefit.  He did attempt to transfer the benefit after his retirement and was told he was not eligible.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 31 October 2009
* DD Form 214 ending on 25 April 1980
* Information sheet about transferability of Post 9/11 GI Bill educational benefits
* VA Form 22-1990E (Application for Transfer of Entitlement (TOE))
* VA Form 21-686c (Declaration of Status of Dependents)
* Memorandum for Deputy Chief of Staff, G-1, dated 10 July 2009, with enclosure
* Certificate of eligibility, dated 5 August 2009
* VA Claim Denial, dated 4 November 2009

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After completing over 20 years of active service, the applicant retired from the Army on 31 October 2009.

3.  During the processing of this case, on 4 May 2012, a favorable advisory opinion was obtained from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, Enlisted Professional Development Branch, which recommended granting administrative relief to the applicant because he 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 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 opinion stated:

	a.  A Soldier must be currently on active duty or a member of the Selected Reserves at the time of TEB to his/her dependent (on or after 1 August 2009).  The applicant retired from the military service on 31 October 2009; however the TEB online database does not show he transferred benefits.  He contends that he did not know this had to be done prior to retirement.

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

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

4.  On 4 May 2012, a copy of the advisory opinion was sent to the applicant for his information and opportunity to submit comments or rebuttal.  No response was received.

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 2008, Congress passed a law for the Post-9/11 GI Bill which 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 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 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.

7.  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 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 requests approval of TEB under the Post-9/11 GI Bill to his spouse and children.

2.  The applicant had over 20 years of service upon his retirement, no additional service requirement, no evidence of any adverse action, and he would have been eligible to transfer the benefit to either his spouse or children if he had transferred it before he 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 DOD 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 have also been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  His retirement date was 31 October 2009.  It is reasonable to presume that had he been aware of the procedure to transfer his benefits while in an active duty status he would have done so.  Therefore, as a matter of equity, his records should be corrected to show he did so in a timely manner prior to his effective date of retirement.







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 Post 9/11 GI Bill benefits to his 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)                                         AR20120004749





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ABCMR Record of Proceedings (cont)                                         AR20120004749



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