IN THE CASE OF:	  

		BOARD DATE:  27 November 2012

		DOCKET NUMBER:  AR20120009145 


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 correction of his military records to show he transferred his Montgomery GI Bill benefits to his dependents under the Transfer of Education Benefits (TEB) provisions of the Post-9/11 GI Bill.

2.  The applicant states at the time of his retirement the TEB provisions of the Post-9/11 GI Bill were still in its early development and there was no information given to him that would have guided him in the right direction to transfer benefits. The TEB came into effect on 1 August 2009 and he retired on 1 October 2009.  This short window to respond, compiled with a lack of information from his counselors, caused him to miss out on this opportunity for his daughter.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a retirement date of 30 September 2009.

CONSIDERATION OF EVIDENCE:

1.  On 30 September 2009, he was retired and placed on the Retired List on the following day.  He was credited with 20 years and 12 days of creditable active service.

2.  In the processing of this case, on 20 June 2012, an advisory opinion was obtained from the Department of the Army, Office of the Deputy Chief of Staff, 
G-1. The advisory official recommended approval of the applicant's request to 

transfer his Post-9/11 GI Bill education benefits.  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 service during the first 90 days of the program were not fully aware of the requirement to transfer education benefits prior to leaving military service.

	a.  His last day of active duty was 30 September 2009.  He would have been eligible to transfer the education benefit if he had transferred them before he left active service.

	b.  He had more than 20 years of service upon his retirement, so he was eligible to transfer to either his spouse or children.

	c.  The TEB online database shows he had three eligible family members enrolled in DEERS.  He was eligible to transfer benefits to his spouse and two children.  He did not complete the requirements in the TEB online database because he stated he was not aware of the requirement to transfer them prior to leaving service.

	d.  A Soldier must initially request the transfer through the Department of Defense (DOD) TEB online database.  This database was operational on
29 June 2009.  Once approved in the TEB database, the information was automatically relayed to the Department of Veterans Affairs (VA).  The respective dependent must then submit an application for VA benefits.  Since he states he was unaware of the requirements none of the steps to transfer benefits were taken.

	e.  Changes to the amount of months allocated to family members can be made at anytime, to include once he leaves military service, provided the service member allocates at least one month of benefits prior to separation.  The TEB website shows no action was taken by the applicant to transfer any benefits.

	f.  Soldiers should not be granted relief based on unawareness of the law, program, rules, or procedures, unless they left the service during the implementation phase (first 90 days of the program).  The Army, Department of Defense (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.  The applicant's last day of military service was 30 September 2009, which was within 90 days after the program's implementation.

	g.  The VA is restricted to pay for education benefits compensating no more than one retroactive year from the date a claim is received by the VA.  If he is granted relief, the beginning date for his dependents to use the transferred benefits would be the date of relief unless previous specific claims were submitted to the VA and verified by the VA upon approval.

3.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 1 July 2012, by email, he agreed with the favorable recommendation of the advisory opinion.

4.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible member 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 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.

5.  The policy further states the Secretaries of the Military Departments will provide active duty participants with pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

6.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation 

Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  

DISCUSSION AND CONCLUSIONS:

1.  He was fully eligible to transfer his education benefits under the TEB prior to retirement but he did not do so.  The program was implemented in July 2009 and became effective on 1 August 2009.  He retired on 1 October 2009.  Therefore, he left the service during the implementation phase (first 90 days of the program).

2.  The DOD, VA, and the Army conducted massive public campaigns 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 two criteria to qualify to transfer benefits to an eligible dependent:

* be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided the Soldier does not have an adverse action)
* have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of the request, unless retirement eligible

3.  Nevertheless, during the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  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 programs implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  His retirement date was 1 October 2009.  It is reasonable to presume that had he been aware of the procedure to transfer his benefits while in an active duty status he would have done so.  Therefore, as a matter of equity, his records should be corrected to show he applied to transfer his education benefits in a timely manner prior to his effective date of retirement.

5.  Post-9/11 GI Bill benefits are paid by the VA.  The effective date of payments is determined by that agency.


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 benefits to his eligible family members 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)                                         AR20120009145



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ABCMR Record of Proceedings (cont)                                         AR20120009145



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