IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120006838 


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, in effect, an exception to policy to transfer his educational benefits to eligible dependents under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  He states, in effect, he was not informed at the time of retirement that he had to elect to transfer his educational benefits to family members prior to retirement. Now he is unable to do so and he was counting on the remainder of his benefits to assist his son with college.  Had he known about the requirement he would have acted upon it prior to retirement.

3.  He provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Pennsylvania Army National Guard (PAARNG) on 24 July 1981.  He was ordered to active duty and entered active duty on 10 May 2009.  He was honorably retired from active duty on 31 December 2009.  He was credited with completing over 24 years of net active service.

2.  In an advisory opinion, dated 7 August, 2012, the Chief, Personnel Policy Division, National Guard Bureau (NGB) recommended approval of the applicant's request to transfer his GI Bill benefits to his son.  The NGB official stated:

	a.  The applicant states that he was not informed at the time of his retirement of the option to transfer his GI Bill benefits to his dependent.  The applicant also states that if there had been any mention of electing to transfer his benefits during his service, he would have acted upon it prior to retirement.  The applicant is now unable to transfer his benefits; however, he is still counting on the unused portion of his GI Bill benefits to assist his son with college because he believes that he is qualified to transfer his benefits to his son.

   b.  Public law 110-252 and its amendment Public Law 111-377, identified the qualifications 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 also establishes the legal requirements on the transferability of unused Post 9/11 GI Bill benefits.  This law limited the transfer 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.  The applicant's last day in service with the ARNG was 31 December 2009.
   
   c.  The ARNG, Department of Defense and 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 of all Soldiers during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer prior to leaving military service.
   
   d.  In a memorandum, dated 26 April 2012, provided by ARNG, Personnel Programs, Resources and Manpower Division indicated their office reviewed the Soldier's available records and recommends administrative relief for the Soldier.  The State concurs with this recommendation.

3.  On 22 June 2009, the Department of Defense 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 Department of Defense) 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.

4.  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.

5.  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.  

6.  On 7 August 2012, he was provided a copy of this advisory opinion for acknowledgment and/or rebuttal.

7.  In his response, received on 13 August 2012, the applicant states that he has no additional information to provide.  He hopes that the Board will consider the positive NGB's recommendation in their decision.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record shows he was honorably retired on 31 December 2009 after completing more than 24 years of service.  In order to transfer his educational benefits he was required to have been a member of the service on or after 1 August 2009, which is a requirement established in the law.  His last day was 31 December 2009; he was eligible to transfer educational benefits to either his spouse or his children.  

3.  Notwithstanding the advisory opinion from the NGB recommending that relief be granted, the law does not provide for the retroactive transfer of educational benefits for an individual who left the service.  In addition, because he left active duty more than 90 days after the program was implemented and because there is insufficient evidence to show the applicant was unaware of the requirements of the program there is no equitable basis on which to grant the relief requested.   The advisory opinion acknowledges that the ARNG, Department of Defense and 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.

4.  The applicant is commended for his dedicated and honorable service; unfortunately, he would have been eligible to transfer benefits only if he had transferred them before he left the service.   

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)                                         AR20120006838



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006838



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1