IN THE CASE OF:	  

		BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120008754 


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 education benefits to his dependents before he was released from active duty on 31 October 2009. 

2.  The applicant states that he did not receive notice of the requirements for transfer of education benefits (TEB) because he completed his final outprocessing in the 2d week of July 2009 and began terminal leave on 30 July 2009.  He goes on to state that he immediately accepted a job overseas moving 9 days later.  Accordingly, he desires to transfer his benefits to his wife of 32 years. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of his denial of education benefits from the Department of Veterans Affairs (VA).

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the rank of chief warrant officer four (CW4) on  31 October 2009 when he was retired and was transferred to the Retired List effective 1 November 2009 after serving over 28 years of active service.

2.  In the processing of this case a staff advisory opinion was obtained from the Human Resources Command (HRC) Education Incentives Branch  who 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 at the time.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

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 education benefits to family members.  A service member may execute the transfer of benefits only while serving as a member of the Armed Forces.  The 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 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 education benefits under the Post-9/11 GI Bill to his dependents prior to his release from active duty on 31 October 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 given the close proximity of the applicant's retirement (31 October 2009) to the effective date of the Post-9/11 GI Bill (1 August 2009), and given the fact he was outprocessing and going on terminal/transition leave, that he was not informed that he had to make his transfer of education benefits while he was still on active duty.  

4.  It is reasonable to presume, 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 he would have transferred his education benefits to his dependents while he was on active duty had he known the requirements to do so, given that his spouse was 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 he applied to transfer his education 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 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 education 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)                                         AR20120008754





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ABCMR Record of Proceedings (cont)                                         AR20120008754



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