IN THE CASE OF:	  

		BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120007079 


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, correction of his records to show he applied to transfer his education benefits to his dependent child under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  He states:

* he was briefed prior to his retirement that the process could be initiated any time after retirement
* upon retirement, he immediately took a contracting position in Afghanistan, causing him not to be aware of any updated information regarding the GI Bill
* his daughter was scheduled to begin college this fall and he would appreciate consideration of his application

3.  He submitted his:

* DD Form 214 (Certificate of Release or Discharge from Active Army) 
* DA Form 31 (Request and Authority for Leave)

CONSIDERATION OF EVIDENCE:
1.  The applicant submitted his DA Form 31 which shows he submitted a request for terminal leave from 18 August to 30 November 2009.

2.  The applicant's DD Form 214 shows he retired in the rank of first sergeant/E-8 on 30 November 2009.  It further shows he completed 22 years, 7 months, and 30 days of active military service.  

3.  During the processing of this case, an advisory opinion was obtained from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who recommended administrative relief because the applicant left the service within 90 days of the implementation of the program.

	a.  He was honorably retired on 30 November 2009 which was within 90 days after the implementation of the Post-9/11 GI Bill.  He had more than 20 years of service prior to retirement; therefore, he would not have incurred an additional obligation.  

	b.  The TEB online database shows he had five eligible dependants: his spouse and four children enrolled in the Defense Eligibility Enrollment Reporting System.  As a result, he was eligible to transfer his benefits to his children or his spouse (if he completed the request before leaving the military).

	c.  The TEB website shows no action was taken by the applicant to transfer any benefits.  However, he claims he did not complete the requirements in the TEB online database because he was not aware of the requirement to transfer his benefits prior to leaving the military.

4.  The advisory opinion further stated that although significant measures were taken to disseminate the information to all Soldiers within all Army components 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 requirements to transfer their benefits prior to leaving the military.

5.  On 9 August 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.   

6.  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 an eligible member is 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 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.

7.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show he applied for and was approved to transfer his Post-9/11 GI Bill benefits to his eligible dependent children prior to retirement has been carefully considered and found to have merit.  

2.  The available evidence shows he was fully eligible for transfer of his education benefits to his dependents under the Post-9/11 GI Bill, but he contends he was not aware he needed to be on active duty to transfer the benefits to his dependents.  

3.  The advisory opinion recommends administrative relief because he left the service within 90 days of the implementation of the program.  Although significant measures were taken to disseminate the information to all Soldiers within all Army components 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 requirements to transfer benefits prior to leaving the military.  The applicant retired on 30 November 2009, which was within 90 days of implementation of the program.

4.  In view of the above and in the interest of equity, his request for relief should be granted.

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 his Post-9/11 GI Bill benefits to his dependent 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)                                         AR20120007079





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ABCMR Record of Proceedings (cont)                                         AR20120007079



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