IN THE CASE OF:
BOARD DATE: 8 January 2013
DOCKET NUMBER: AR20120008984
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 spouse.
2. He states:
a. during transition processing prior to his release from active duty, no one knew how the designation for a family member to receive benefits would be executed.
b. a Department of Veterans Affairs (VA) representative at his transition briefing told him he would be able to transfer benefits to his spouse based on the date he was leaving active duty which was after 1 August 2009.
c. if anyone had told him he had to designate his spouse to receive his
Post-9/11 GI Bill benefits prior to his last day on active duty, he would have acted on that information.
3. He provides:
* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 28 February and 31 October 2009
* Reassignment orders, dated 11 February 2009
* Orders, dated 17 February 2009, recalling him to active duty
* Orders, dated 3 August 2009, releasing him from active duty
* Retirement orders, dated 29 August 2009
CONSIDERATION OF EVIDENCE:
1. After completing over 30 years of service, the applicant retired on 31 October 2009 in the rank/pay grade of colonel/O-6.
2. An advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, during the processing of this case, dated on 20 June 2012, who recommended approval of the applicant's request. The Chief, Education Incentives Branch, stated:
a. 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.
b. The applicant is eligible to transfer benefits under the Post-9/11 GI Bill TEB Program to his dependents because he retired within 90 days of the implementation of the program. Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, 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 military service.
c. The applicant's last day in military service was 31 October 2009 and he would have been eligible to transfer the benefits if he had done so before he left the service.
d. The TEB online database shows the applicant had one eligible dependent (spouse) enrolled in Defense Enrollment Eligibility Reporting System as of 31 October 2009. The applicant did not complete the requirements in the TEB online database because he claimed he was not aware of the requirement.
3. A copy of the advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments or a rebuttal. He did not respond to the advisory opinion within the allotted time frame.
4. 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 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for approval to transfer his educational benefits under the Post-9/11 GI Bill to his spouse has been carefully considered and 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, 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.
3. The evidence of record shows the applicant retired from active duty on 31 October 2009 which is within 90 days of the implementation of the program.
4. Therefore, it would be equitable to correct his records to show he applied to transfer his educational benefits under the Post-9/11 GI Bill TEB Program upon implementation of the program.
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 spouse 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) AR20120008984
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ABCMR Record of Proceedings (cont) AR20120008984
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