BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120007965 


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 correction of his military records to show he transferred his Montgomery GI Bill benefits to his dependent child Elise under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he started his transitional leave in September 2009 and he retired on 30 November 2009.  He was never briefed that to transfer his
Post-9/11 GI Bill benefits to his children he had to do it prior to his retirement.

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  On 30 November 2009, the applicant retired and he was placed on the Retired List the following day.  He completed 24 years, 2 months, and 25 days of creditable active service.

2.  The Defense Finance and Accounting Service (DFAS) confirmed that from
31 August through 30 November 2009, the applicant was on annual leave, permissive temporary duty (PTDY), or transitional leave as follows:

	31 August - 27 September				annual leave
	28 September - 2 October				PTDY
	5 October - 9 October					PTDY

	12 October - 17 October				annual leave
	25 October - 3 November				PTDY
	4 November - 30 November			transitional leave

3.  His last day of active duty was 30 November 2009.  He would have been eligible to transfer the educational benefits if he had transferred them before he left active service.

4.  He had more than 20 years of service upon his retirement, so he was eligible to transfer his benefits to either his spouse or children.

5.  The TEB online database shows he had five eligible family members enrolled in DEERS.  He was eligible to transfer benefits to his spouse and four children.  He did not complete the requirements in the TEB online database because he stated he was not aware of the requirement to transfer them prior to leaving service.

6.  A Soldier must initially request the transfer through the Department of Defense (DOD) TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information was automatically relayed to the Department of Veterans Affairs (VA).  The respective family member must then submit an application for VA benefits.  He did not complete the requirement in the TEB online database for his family members because he claims he was not aware of the requirement to transfer the benefits prior to leaving the service.

7.  Changes to the amount of months allocated to eligible family members can be made at anytime, to include once he leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.  The TEB website shows he did not transfer benefits to his family members.

8.  Soldiers should not be granted relief based on unawareness of the law, program, rules, or procedures, unless they left the service during the implementation phase (first 90 days) of the program.  The Army, DOD, 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 educational benefits.  His last day of military service was 30 November 2009.  However, he was essentially not available for counseling due to annual leave, PTDY, and transitional leave beginning on 31 August 2009 that was within 90 days after the program's implementation.

9.  The VA is restricted to pay for educational benefits compensating no more than 1 retroactive year from the date a claim is received by the VA.  If he is granted relief, the beginning date for his family members to use the transferred benefits would be the date of relief unless previous specific claims were submitted to the VA and verified by the VA upon approval.

10.  In the processing of this case, on 9 October 2012, an advisory opinion was received from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  The advisory official recommended approval of his request to transfer his Post-9/11 GI Bill educational benefits.

11.  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.  On
19 October 2012, he agreed with the favorably recommendation of the advisory opinion.

12.  On 22 June 2009, 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.

13.  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, document accordingly, 

and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

14.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his educational benefits under the TEB prior to retirement but he did not do so.  The program was implemented in July 2009 and became effective on 1 August 2009.  He commenced a period of annual leave, PTDY, and transitional leave on 31 August 2009 and he retired on 30 November 2009.  Therefore, he essentially was unavailable for counseling during the implementation phase (first 90 days of the program).

2.  The DOD, VA, and the Army conducted massive public campaigns 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:

* be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided the Soldier does not have an adverse action)
* 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 the request, unless retirement eligible

3.  Nevertheless, during the initial implementation of this new program, many Soldiers in all grades were confused regarding their eligibility and/or the procedure to apply for such benefits.  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 60 to 90 days of the program's 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 30 November 2009; however, he was on leave and PTDY from 31 August 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 applied to transfer his educational benefits to his eligible family members in a timely manner prior to his effective date of retirement.
5.  Post-9/11 GI Bill benefits are paid by the VA.  The effective date of payments is determined by that agency.

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 eligible family members 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)                                         AR20120007965



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ABCMR Record of Proceedings (cont)                                         AR20120007965



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