IN THE CASE OF:	  

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120009431 


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

2.  The applicant states that the Army National Guard (ARNG) did not properly inform him during the time of his retirement that he could transfer his education benefits to his dependents prior to his retirement from the ARNG.  Had he known prior to his retirement he would have transferred his education benefits to his dependents.

3.  The applicant provides no additional documentation.		

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior active duty and Reserve Component (RC) service and attained the rank/grade of staff sergeant (SSG)/E-6.  He enlisted in Alabama Army National Guard (ALARNG) on 5 December 2008.

2.  The applicant was honorably discharged from the ALARNG on 12 April
2010 and he was transferred to the Retired Reserve.  He completed 22 years of total service for retired pay.



3.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  The advisory official recommended administrative relief for the applicant.  The advisory official stated the applicant was eligible for Post-9/11 GI Bill benefits; however, he did not complete a request to transfer benefit on the Department of Defense's (DOD's) TEB online database before he left the service.  It is recommended that the Soldier receive full administrative relief in this matter and be provided the opportunity to transfer his benefits.  The advisory official states, in summary that:

	a.  The Soldier requests an exception to policy in order to transfer his Post- 9/11 GI Bill benefits, which he claims he was unable to do as a result of not receiving proper counsel/advice at the time of his retirement.

	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.  His last day of service with ARNG was 12 April 2010.  After a thorough review of his records, we have determined that he was eligible for the Post-9/11 GI Bill, but did not complete a request to transfer benefits on the DOD's of Defense's Transfer Education Benefits online database before he left the service.

	d.  The ARNG, the DOD, the Army, and Department of Veterans Affairs (DVA) 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 TEB.  Although significant measures were taken to disseminate the information during the initial phase of the program, many Soldiers were not fully aware of the requirement to transfer prior to leaving military service.

4.  On 8 November 2012, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.

5.  On 22 June 2009, 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 may transfer benefits if, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, the member 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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

7.  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.  The applicant’s request to transfer his education benefits under the Post- 
9/11 GI Bill was carefully considered and it was determined there is insufficient evidence to support his request.

2.  Contrary to the basis for the approval recommendation cited in the NGB advisory opinion, evidence of record shows that prior to the applicant's retirement date he had ample time to transfer his benefits under the Post-9/11 GI Bill to his dependents.  

3.  The DOD, the Army, the DVA, and the ARNG conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance of the applicant's transfer to the Retired Reserve with emphasis on the criteria.  It is reasonable to presume he had access to that information.

4.  The applicant's faithful service and his sincerity are not in question.  However, the TEB was implemented on 1 August 2009.  He retired on 12 April 2010, 
9 months after the program was implemented.  He provides insufficient evidence to show he was unaware of the massive publicity campaign that accompanied the implementation of the program.  Therefore, there is insufficient evidence to warrant 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)                                         AR20120009431





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ABCMR Record of Proceedings (cont)                                         AR20120009431



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