BOARD DATE: 3 January 2013
DOCKET NUMBER: AR20120008865
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 that he be allowed to transfer his educational benefits to his family members under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he was not informed that he had to complete a special request prior to retirement to allow his dependents to utilize his educational benefits.
3. The applicant provides no supporting documentation.
CONSIDERATION OF EVIDENCE:
1. The applicant was an Army National Guard sergeant first class and his last period of active service was from 30 January 2003 through 30 December 2004. He was transferred to the Retired Reserve effective 24 October 2009 with over 29 years of service for retirement and 30 years of service for pay.
2. The available record does not contain an indication of what if any pre-separation briefings or counseling the applicant may have received.
3. Advisory opinions from the Education Incentive Branch, U.S. Army Human Resources Command, Fort Knox, KY in similar cases have recommended approval of the Soldier's request, noting that many Soldiers who left military service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving active service.
4. Public Law 110-252, section 3319, provides the eligibility requirements necessary to TEB to family members. A service member may execute transfer of benefits 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. The 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.
5. The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 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 is required.
b. Service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 no additional service is required.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows the applicant was fully eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to his transfer to the Retired Reserve but he did not do so. The program was implemented in July 2009. The applicant was transferred to the Retired Reserve on 24 October 2009.
2. The applicant had over 30 years of service upon retirement, no additional service requirement, no evidence of any adverse action, and he would have been eligible to transfer the benefits if he had done so before he left the service.
3. The Department of Defense (DOD), the VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent.
4. Nevertheless, during the initial implementation of this new program, many Soldiers in all grades were confused regarding their eligibility and/or the procedure to apply for such benefits. This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 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.
5. The applicant was transferred to the Retired Reserve on 24 October 2009. It is reasonable to presume that had he been aware of the procedure to transfer his benefits while in an active status he would have done so. Therefore, as a matter of equity, his records should be corrected to show he did so in a timely manner prior to his 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 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 his education benefits to his family members under the TEB provision of
the Post-9/11 GI Bill 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) AR20120008865
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ABCMR Record of Proceedings (cont) AR20120008865
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