BOARD DATE:  27 November 2012

		DOCKET NUMBER:  AR20120009409 


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 Education Benefits (TEB) under the provisions of the Post-9/11 GI Bill to his dependent. 

2.  The applicant states that at the education center during final outprocessing he was told he was not eligible to transfer his education benefits to his dependent.  Later, he found out by going on-line that he was eligible to transfer the benefits. 

3.  The applicant provides copies of his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Retirement orders

CONSIDERATION OF EVIDENCE:

1.  After completing over 22 years of active service, the applicant retired from the Regular Army on 31 December 2009.

2.  During the processing of this case, a favorable advisory opinion was obtained from the Chief, Enlisted Career Systems Division, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army, dated 22 June 2012.  The opinion recommended granting relief to the applicant because he was separated from active duty within 90 days of the Post-9/11 GI Bill Transferability Program implementation on 1 August 2009.  The advisory official acknowledged that 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 active service.  The advisory official stated:

	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of TEB to his/her dependent(s) on or after 1 August 2009.  The applicant's last day of active duty service was 31 December 2009 and he started the transition/retirement leave on 23 September 2009, which was within 90 days after the program's implementation.  Therefore, he would have been eligible to transfer his educational benefits while still on active duty.

	b.  The applicant was eligible to participate in the program and he had dependents eligible to receive those benefits.

	c.  The applicant had more than 20 years of service when he retired; therefore, he would not have incurred an additional service obligation.  Further, he had no record of adverse action.

3.  On 26 June 2012, a copy of the advisory opinion was sent to the applicant for her for information and an opportunity to submit comments and/or rebuttal.  He did not respond.

4.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The Department of Veterans Affairs is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.

5.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 


2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732:

	a.  Service members eligible for retirement on 1 August 2009 – no additional service is required.

	b.  Service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service is required.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests approval of TEB under the provisions of the Post-9/11 GI Bill to his dependent.

2.  The applicant had over 20 years of service upon retirement, no additional service requirement, no evidence of any adverse action, and he would have been eligible to transfer the benefits if he had done so before he left the service.

3.  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 Department of Defense website and the lack of proper log-in credentials for those who may have signed out on transition leave within 90 days of the program implementation.  Similarly, officials at some education centers may also have been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  The advisory opinion indicated the applicant began out processing and had permissive temporary duty and terminal leave starting in September 2009.  His retirement date was 31 December 2009.  In view of the fact that 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 active service, it would serve the interest of equity to correct her record to reflect she transferred her educational benefits while still serving on active duty as recommended in the Deputy Chief of Staff, G-1, HQDA, advisory opinion.



BOARD VOTE:

____x_  ___x_____  _____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 both timely and accurately and that the Army approved his request to transfer Post-9/11 GI Bill benefits to his dependent prior to 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)                                         AR20110019081



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ABCMR Record of Proceedings (cont)                                         AR20120009409



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