IN THE CASE OF:	  

		BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120008150 


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 approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to her son.

2.  The applicant states, in effect, prior to separating from the Army she was never provided complete information with respect to the eligibility requirements or TEB with respect to the Post-911 GI Bill.  She attests that she completed a TEB via the electronic system prior to retirement from active duty on 21 August 2009.  This was a new program and she did not receive a confirmation or rejection notification.  The program was being overwhelmed by applications and they were concentrating on dependents who were attending college in January 2010, so they would receive benefits in a timely manner.  Her son was only 16 years old, thus they were not concerned about him attending college for several years.  When she went to confirm that he would receive Post-9/11 GI Bill benefits for fall of 2012, he was not listed and she could not correct the transfer since she was no longer on active duty.  She has made several attempts to resolve this situation via email, but they have been to no avail.

3.  The applicant provides:

* Email correspondence
* DA Form 669 (Army Continuing Education System (ACES) Record)
* Post-9/11 GI Bill Transferability Fact Sheet
* Post-9/11 GI Bill Information Sheet
* Retirement orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter from the Department of Veterans Affairs
* Certificate of Eligibility for Post-9/11 GI Bill

CONSIDERATION OF EVIDENCE:

1.  The applicant retired from the Regular Army on 30 September 2009 by reason of sufficient service for retirement.  She completed 23 years, 11 months, and 28 days of creditable active service.

2.  During the processing of this case, on 8 June 2012, an advisory opinion was obtained from the U.S. Army Human Resources Command, Chief, Education Incentives Branch, who recommended granting administrative relief to the applicant because she was separated from active duty within 90 days of the Post-9/11 GI Bill Transferability Program implementation on 1 August 2009.  The advisory official acknowledged that many Soldiers who left service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving active service.  The advisory official further stated:

	a.  A Soldier must be currently on active duty or a member of the Selected Reserves at the time of a TEB to his/her eligible family members (on or after
1 August 2009).  The applicant retired from the military service on 30 September 2009.

	b.  The applicant was eligible to participate in the program and she had family members eligible to receive those benefits.

	c.  The applicant had more than 20 years of service when she retired; therefore, she would not have incurred an additional service obligation.  Further, she had no record of adverse action.

3.  On 20 June 2012, the applicant was provided a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.
On 11 July 2012, she concurred with the advisory official's recommendation.

4.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives, 2642.  In July 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.


5.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute a TEB only while serving as a member of the Armed Forces.  The Department of Veterans Affairs (VA) is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

   b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.

6.  The program guidance stipulates that if a service member becomes retirement eligible during the period 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her family members.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or
20 qualifying years as computed under Title 10, U.S. Code, section 12732:

	a.  service members eligible for retirement on 1 August 2009 – no additional service required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

	d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;

	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and

	f.  active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.
DISCUSSION AND CONCLUSIONS:

1.  The applicant had nearly 24 years of service upon retirement, no additional service requirement, no evidence of any adverse action, and she would have been eligible to transfer the benefit to her eligible family members if she had transferred it before she left the service.

2.  During the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  This confusion was exacerbated with heavy use of the Department of Defense website and the lack of proper log-in credentials for those who may have signed out on transition leave within 90 days of the program implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.

3.  The applicant's retirement date was 30 September 2009.  It is reasonable to presume that had she been aware of the procedure to transfer her benefits while in an active duty status she would have done so.  Therefore, as a matter of equity, her records should be corrected to show she did so in a timely manner prior to her effective date of retirement.

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 her application and the Army approved her request to transfer Post-9/11 GI Bill benefits to her eligible family members prior to 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)                                         AR20120008150





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ABCMR Record of Proceedings (cont)                                         AR20120008150



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