IN THE CASE OF:	  

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120008728 


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 a family member under the Transfer of Education Benefits (TEB) provisions of the Post 9/11 GI Bill.

2.  The applicant states:

   a.  He qualified for the Post 9/11 GI Bill due to a 30-month mobilization.  He was told that he could transfer his benefits to a family member.  He attempted to do this, but was told he needed to exhaust approximately 28 days of his Montgomery GI Bill first, which he did.  The Department of Veterans Affairs (VA) then told him that he could only receive 12 months of the Post 9/11 GI Bill since they limited this benefit to a maximum of 48 months.

	b.  He applied to transfer his Post 9/11 GI Bill to his daughter, but was told by the VA that he could not transfer them because he was retired.  At no time was he informed that by retiring prior to transferring his GI Bill rights he would lose the option to do so.  The VA advised him to file a DD Form 149 (Application for Correction of Military Record) to get this decision changed.

3.  The applicant provides:

* 2005, 2006 and 2007 mobilization orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Geneva Conventions Identification Card
* U.S. Army Reserve Retirement Orders
* letter from the VA
* VA - Your Rights To Appeal Our Decision information sheet

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the U.S. Army Reserve (USAR) on 16 June 2003 with prior Army National Guard enlisted service.  He was ordered to active duty in support of Operation Enduring Freedom and entered active duty on 1 June 2005.  He was honorably released from active duty on 23 November 2007 and was transferred to a Reserve unit.  He was credited with completing 2 years, 5 months, and 23 days of net active service.

2.  He was honorably discharged from the USAR and was transferred to the Retired Reserve on 19 September 2009.  He was credited with completing 21 years and 8 days of total service for pay.

3.  On 22 June 2009, the Department of Defense (DoD) established the criteria for eligibility and transfer of unused educational 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 DoD) 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 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 service 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, 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 26 October 2012, he was transferred from the Retired Reserve to a Reserve unit.  

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record shows he was transferred to the USAR on 19 September 2009 after completing more than 20 years of service.  In previous cases, the Office of the Deputy Chief of Staff, G-1 had 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 requirement to transfer the benefits prior to leaving military service.  

3.  The applicant's last day in an active status was 19 September 2009 which was within 90 days of implementation of the program.  The applicant contends he was not aware of the requirement to transfer his educational benefits prior to retirement; therefore, none of the required steps to transfer his benefits were taken.  Based on the foregoing and as a matter of equity, his records should be corrected to show he transferred his benefits to either his spouse or children 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 transfer to the Retired Reserve, 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)                                         AR20120008728





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ABCMR Record of Proceedings (cont)                                         AR20120008728



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