IN THE CASE OF:	  

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120006799 


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 to transfer educational benefits under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill to his family member.

2.  The applicant states, in effect:

* he went on line in 2009 to transfer his educational benefits to his dependents under the provisions of the Post 9/11 GI Bill but apparently the application was never received in Buffalo, NY
* he did not receive adequate time to ensure all his paperwork was correct; he was medical discharged after a longstanding paperwork struggle with the New York Army National Guard (NYARNG)
* he suffered injuries during his deployment to Iraq and he received service-connected disability compensation from the Department of Veterans Affairs

3.  The applicant provides:

* Orders 122-1081 (Retired Reserve)
* Certificate of Service
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 31 December 2009, 30 September 2007, 31 October 2005, and 5 October 1990
* Honorable Discharge Certificate
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending on 4 January 1998 
* Honorable Discharge Certificate from the U.S. Coast Guard (USCG) Reserve
* Letter from the Department of Homeland Security
* USCG Meritorious Unit Commendation

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the USCG, ARNG, and Regular Army, the applicant enlisted in the NYARNG on 1 November 2005 and he held military occupational specialty 15P (Aviation Operations Specialist). 

2.  He served in a variety of stateside assignments with multiple mobilizations on active duty and he attained the rank/grade of staff sergeant (SSG)/E-6. 

3.  He entered active duty on 8 September 2009 and he was honorably released from active duty to the control of his State on 31 December 2009. 

4.  Subsequent to his release from active duty, he continued to participate in unit training as an Aviation Operations Noncommissioned Officer while assigned to the 27th Brigade Combat Team, 42nd Infantry Division. 

5.  On 13 June 2011, he was honorably discharged from the ARNG and he was transferred to the Retired Reserve.  He was also issued a Notification of Eligibility for Retired pay at Age 60 (Selected Reserve 15-Year Letter). 

6.  On 5 June 2012, an advisory opinion was obtained from the NGB in the processing of this case.  The NGB official recommended approval and stated:

	a.  Public Law 110-252 and its amendment Public Law 111-377 identifies the qualification to receive the Post 9/11 GI Bill, one of which is that the service member must have performed on or after 11 September 2001 in order to be eligible for the Post 9/11 GI Bill.  Public Law 110-252 establishes legal requirements on the transferability of unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  

	b.  The ARNG, Department of Defense (DOD), and the VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and subsequent transfer of education benefits.  Although significant measures were taken to disseminate the information to all Soldiers during the initial phase of the program, many Soldiers who left service during the first 90 days of the program were not fully aware of the requirements to transfer prior to leaving the military.  The Soldier retired 90 days after program's implementation.  

	c.  The State recommends relief and concurs with the recommendation.  

7.  The applicant was provided with a copy of this advisory opinion and he concurred. 

8.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education 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 from 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.

9.  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.

10.  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.  There is insufficient evidence that shows the applicant submitted a request to transfer the education benefits to his family member(s) while in an active status.  It is unclear if and when the applicant submitted a request to transfer the benefits on the TEB website.  No evidence of a submission was found. 

2.  The DOD, VA, 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.  While there may have been some confusion during the early stages after the implementation, the applicant retired over two years after the program was implemented.

3.  The applicant's service and his sincerity are not in question.  However, as the applicant had been in an active status in the ARNG since the program was implemented in August 2009, and over 2 years (he retired on 13 June 2011) after the program was implemented, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  There is neither an error nor an injustice in the applicant's transfer of benefits processing.

4.  The law did not require him to be on active duty at the time of transfer; it requires him to be a member of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  Therefore, notwithstanding the NGB's advisory opinion, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120006799



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ABCMR Record of Proceedings (cont)                                         AR20120006799



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