IN THE CASE OF:	  

		BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120008117 


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

2.  He states the transition assistance program, as well as the education counselor, did not help with obtaining his benefits under the TEB.  He was not adequately informed of the requirement to transfer the entitlement while in the service. 

3.  He adds that his transition processing for retirement began on 8 June 2009.  He later retired on 30 September 2009 and submitted a Department of Veterans Affairs (VA) Form 22-1990E (Application for Family Member to Use Transferred Benefits)) on 18 August 2009.  The VA denied his claim because they did not receive any information from the Department of Defense (DOD) indicating he was eligible to transfer his benefits.  

4.  The applicant provides a copy of the VA Form 22-1990E and the TEB under the Post 9-11 GI Bill denial letter from the VA.  

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 13 September 1979.  After serving through a series of reenlistments and promotions, the applicant retired in the rank of command sergeant major/E-9 on 30 September 2009.  He had completed over 30 years of honorable service. 
2.  The applicant provided a VA Form 22-1990E and a denial letter from the VA.  These documents indicate he submitted a claim to transfer his Post 9-11 GI Bill benefits to his daughter on 18 August 2009.  The VA letter, dated 27 October 2009 was addressed to the applicant's daughter and stated her claim for the transfer of entitlement to educational benefits was denied because her father had not been approved to transfer his entitlement by the DOD.

3.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, Army G-1, Enlisted Professional Development Branch, Washington, D.C.

     a.  The advisory opinion official recommended administrative relief for the applicant because he retired from the service within 90 days of the implementation of the program.  He was eligible to transfer benefits under the Post 9/11 GI Bill transferability program because his last day in service was 
30 September 2009. 
   
     b.  Although significant measures were taken to disseminate information concerning the transferability of unused Post 9/11/ GI Bill benefits, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer the benefits prior to leaving military service.  

     c.  He was provided a copy of the advisory opinion for comment or rebuttal.  He replied via email on 25 July 2012, indicating he concurred with the recommendation. 

4.  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.

5.  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 evidence of record shows he was honorably retired on 30 September 2009, after completing more than 30 years of service.  The Office of the Deputy Chief of Staff, Army G-1, opined that although significant measures were taken to disseminate the transferability of unused Post 9/11/ GI Bill benefits, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirements and further recommended approval of the applicant's request.  

2.  The applicant's last day in the service was 30 September 2009 which was within 90 days of implementation of the program.  Based on the foregoing and as a matter of equity, he is eligible to transfer his benefits to his dependents under the TEB provisions of the Post-9/11 GI Bill.

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 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)                                         AR20120008117





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ABCMR Record of Proceedings (cont)                                         AR20120008117



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