IN THE CASE OF:	  

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120008986 


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 to transfer his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his dependents.

2.  He states:

	a.  He went through all of his paperwork within his company before he retired and he especially asked about his education program.  He asked if he needed to transfer his "chapter 33" GI Bill benefits to his wife because she wanted to go to school within 1 to 2 years after his retirement.  He was told the GI Bill was good for 10 years and he didn't have to transfer anything.  He was also told his wife, children, and he could use it within that time frame.

	b.  He contacted the Department of Veterans Affairs (VA) education department and he was told the Department of Defense (DOD) announced on 1 August 2009 that you need to apply to transfer your educational benefits.

	c.  He was in Iraq, never got "the memorandum," and went through all the proper channels to retire.  He was told it was an automatic transfer and he didn't have to do anything.

	d.  He served over 27 years in the Regular Army and National Guard.  He served in support of the Los Angeles riot; national disasters, such as the San Francisco earthquake, floods, and forest fires; homeland/airport security; Bosnia; and Iraq.

	e.  He doesn't regret serving his country.  His wife took care of the family during all these years and she never complained.  He just needs help so his wife can go to school.

3.  He provides:

* National Guard Bureau (NGB) Form 22E (Report of Separation and Record of Service)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 November 2009

CONSIDERATION OF EVIDENCE:

1.  After completing 27 years and 3 months of total service for retired pay, the applicant was retired from the Army National Guard on 31 August 2010.

2.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, who states:

	a.  NGB recommends approval.  The applicant is eligible for Post-9/11 GI Bill benefits; however, he didn't complete a request to transfer benefits on the DOD's TEB online database before he left the service.  The applicant should receive full administrative relief in this matter and be provided the opportunity to transfer his educational benefits.  The applicant's last day of service with the Army National Guard was 31 August 2010.

	b.  Public Law 110-252 and its amendment, Public Law 111-377, identify the qualifying Title 10 and Title 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill.  Public Law 110-252 also establishes the legal requirements on the transferability of unused Post-9/11 GI Bill benefits.  This law limits the transfer of 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 Army National Guard, DOD, and the VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits.  Although significant measures were taken to disseminate the information to all Soldiers during the initial phase of the program, many Soldiers were not fully aware of the requirement to transfer benefits prior to leaving military service.

3.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.

4.  On 15 November 2012, he submitted a rebuttal to the advisory opinion with supporting documents including two DD Forms 214, his NGB Form 22, and a DA Form 638 (Recommendation for Award).  He stated he served a total of 50 months post-9/11, to include Bosnia-Herzegovina, Iraq, and homeland defense.  After returning from Operation Iraqi Freedom, he attended two Yellow Ribbon events within 6 months.  They were told the Post-9/11 GI Bill was transferrable to their family members, but they didn't mention it had to be transferred before retirement.  He has been a Soldier for over 22 years and he has always paid attention to detail.  If someone had told him he had to transfer some of his GI Bill, he would have done it.  It's important to him and his wife.  She has supported him all these years and it would be a blessing if she could go to school.

5.  On 22 June 2009, 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 dependents are acknowledged.

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

3.  Even though he contends he especially asked if he needed to transfer his educational benefits to his wife prior to his retirement, 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.  While there may have been some confusion during the early stages (the first 90 days) after the implementation, the applicant did not retire until 1 full year after the program was implemented.

4.  Contrary to the recommendation in the advisory opinion, the applicant did not transfer his educational benefits before he retired on 31 August 2010 and he is therefore ineligible to transfer his benefits by law.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________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)                                         AR20120008986



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ABCMR Record of Proceedings (cont)                                         AR20120008986



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