IN THE CASE OF:	  

		BOARD DATE:  6 November 2012

		DOCKET NUMBER:  AR20120008730 


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 for the Post-9/11 GI Bill Transferability Program to transfer his educational benefits to his dependents before he was released from active duty on 30 September 2009.

2.  The applicant states he was not properly informed of the opportunity to transfer his entitlements while he was still in the service because he finished his out-processing in July 2009 and went on transition leave.

3.  The applicant provides a one-page letter explaining his application and 13 enclosures.

CONSIDERATION OF EVIDENCE:

1.  On 30 September 2009, the applicant was honorably retired in pay grade E-7 after completing 20 years of active service which included service in Bosnia and Croatia.  He was transferred to the Retired List effective 1 October 2009.

2.  A staff advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, in the processing of this case which opined that the applicant's request should be approved because he left the service within 90 days of implementation of the program and was eligible to transfer his benefits to his spouse and children at the time.  The advisory opinion was provided to the applicant for comment; he responded to the effect that he found the advisory opinion to be accurate.

3.  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 of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

4.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute the transfer of benefits only while serving as a member of the Armed Forces.  The Department of Veterans Affairs 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 duty 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, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

5.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning on 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 dependents.  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's request that his record be corrected to show he applied for and the Army approved transferring his educational benefits under the Post-9/11 GI Bill to his dependents prior to his release from active duty on 30 September  2009, has been carefully considered and is found to have merit.

2.  The Post-9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level.  However, the applicant was on terminal/transition leave during the time the program was implemented.

3.  Therefore, it appears reasonable to presume that given the close proximity of the applicant's retirement on 30 September 2009 to the effective date of the 
Post-9/11 GI Bill on 1 August 2009, and given the fact that he was outprocessing and taking terminal/transition leave, that he was not informed that he had to make his transfer of educational benefits while he was still serving on active duty.

4.  It is reasonable to presume that given the timing of the implementation of the program and the applicant's retirement, he very well could have fallen through the cracks and was not notified.  It is also reasonable to presume that he would have transferred his educational benefits to his dependents while he was on active duty had he known of the requirement to do so, given that he had two children eligible for the benefit.

5.  Therefore, given the circumstances in this case, it would serve the interest of equity to correct his record to reflect that he applied to transfer his educational benefits under the Post-9/11 GI Bill transferability provision upon implementation of the provision.



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 Post-9/11 GI Bill educational benefits to his dependents prior to his retirement, provided all other 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)                                         AR20120008730



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ABCMR Record of Proceedings (cont)                                         AR20120008730



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