IN THE CASE OF:	  

		BOARD DATE:  29 November 2012

		DOCKET NUMBER:  AR20120008945 


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 his dependent daughter.

2.  He states he was not properly informed of the opportunity to transfer entitlements while in the service.

3.  He provides:

* Transition Milestones
* Final Out-Processing Procedures for Retiring Personnel
* Requirements for Final 214 Completion with Counselor
* eight DA Forms 31 (Request and Authority for Leave)
* DA Form 137-2 (Installation Clearance Record)
* Out-Processing Checklist
* DA Form 137-1 (Unit Clearance Record)
* Department of Veterans Affairs (VA) Form 21-526 (Veteran's Application for Compensation and/or Pension)

CONSIDERATION OF EVIDENCE:

1.  The applicant retired from the Regular Army on 31 January 2010 in the rank/grade of lieutenant colonel (LTC)/O-5 after completing 23 years of creditable active service.



2.  He provided:

	a.  eight DA Forms 31 which indicate the periods he was approved for leave in 2009:

* 10-11 August
* 17-19 August
* 24 August-2 September
* 9-25 September
* 5-7 October
* 14 October-6 November
* 16-24 November
* 30 November-11 December

	b.  a DA Form 137-2 which shows he cleared his installation on 28 December 2009;

	c.  an Out-Processing Checklist which shows he completed out-processing on 15 August 2009; and

	d.  a VA Form 21-526 which shows he submitted an application to the VA for compensation and/or pension on 2 December 2009.

3.  During the processing of this case, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, dated 9 July 2012.

	a.  The advisory official recommended disapproval of the applicant's request because the applicant did not provide evidence showing he attempted to transfer educational benefits prior to leaving military service and/or that he was given false information by a reliable source about the rules of transferring educational benefits.

	b.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  

	c.  The applicant's last day in military service was 31 January 2010.  He would have been eligible to transfer the benefits if he had done so before he left the service.  The TEB online database shows the applicant had two eligible dependents (spouse and child) enrolled in the Defense Eligibility Enrollment Reporting System.  The available evidence does not show he completed the requirements in the TEB online database prior to retirement.

4.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He stated he feels he should be granted relief due to the time period of his Army Career Alumni Program process, the 63.5 days of terminal accrued leave, and the fact that no Fort Bragg, NC, agency was responsible for ensuring Soldiers were aware of the TEB online database.  He states he wasn't advised and therefore he wasn't cognizant of the important educational information pertaining to his dependents.

5.  On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible individual is 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 duty or 20 qualifying years of Reserve service.

6.  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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's statements in regard to his entitlement to TEB under the 
Post-9/11 GI Bill to his dependent daughter are acknowledged and determined to have merit.

2.  The evidence of record shows he was fully eligible to transfer his educational benefits under the TEB prior to his retirement on 31 January 2010, but did not do so.

3.  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, 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 the service.

4.  The evidence of record shows he began his transition leave on 10 August 2009 which was within 90 days of implementation of the program and he would not have received the information.  

5.  In view of the fact that transfer application procedures were not fully implemented at the time the applicant departed on transition leave, 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 program while still on active duty.

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 he 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 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)                                         AR20120008945





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120008945



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1