IN THE CASE OF:

		BOARD DATE:	    18 December 2012

		DOCKET NUMBER:  AR20120009401 


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, in effect, as an exception to policy the Transfer of Education Benefits (TEB) under the provisions of the Post-9/11 GI Bill to his dependent child.

2.  The applicant states, in effect, at the time of retirement, he was not informed his GI Bill educational benefits were non-transferable after retirement from the Army National Guard (ARNG).  There was no out processing or appointment conducted with the Department of Veterans Affairs (VA) and he was not informed he would lose the option to transfer his educational benefits after retirement.

3.  The applicant provides copies of his DD Form 214 Certificate of Release or Discharge from Active Duty) and ARNG discharge orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the ARNG on 10 February 1987.  He was honorably discharged from the ARNG on 28 September 2011 and was transferred to the Retired Reserve.  He was credited with completing 21 years, 2 months, and 23 days of total service for pay.

2.  In an advisory opinion, dated 7 November 2012, the Chief, Personnel Policy Division, National Guard Bureau (NGB), recommended administrative relief for the applicant.  The NGB official stated:

   a.  The applicant's last day of service with the ARNG was 28 September 2011.  After a thorough review of the available records it was determined that the applicant was eligible for the Post 9/11 GI Bill, but he did not complete a request to transfer benefits on the Department of Defense's (DoD) TEB online database before he left the service.
   
   b.  Public Law 110-252 and it's 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 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 ARNG, DoD, and 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 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 were not fully aware of the requirement to transfer benefits prior to leaving military service.

   d.  The applicant was provided a copy of this advisory opinion for acknowledgment and/or rebuttal.  He did not respond within the time allotted.

3.  On 22 June 2009, the DoD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states 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 four 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 service or 20 qualifying years of Reserve service.

4.  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 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 he retired on 28 September 2011.  Prior to retirement, he did not apply for the transfer of benefits while in the Selected Reserve.

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 various criteria to qualify to transfer benefits to an eligible dependent; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer.

3.  The applicant's service and his sincerity are not in question.  He continued to serve 2 years after the TEB provision of the Post 9/11 GI Bill was implemented.  Therefore, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  While there may have been some confusion during the early stages after the implementation, he retired well after the program was implemented.

4.  Notwithstanding, the advisory opinion rendered by the NGB, there is neither an error nor an injustice in his transfer of benefits processing.  Therefore, he is not entitled to the requested relief.






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 that 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)                                         AR20120009401



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ABCMR Record of Proceedings (cont)                                         AR20120009401



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