IN THE CASE OF:	  

		BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120009574 


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, correction of his records to show he applied for the Post-9/11 GI Bill Transferability Program to transfer his education benefits to his dependents before he was released from active duty on 30 June 2011.

2.  The applicant states, in effect, that he was aware that he had to be on active duty in order to transfer his education benefits and on 22 February 2011 he made an appointment with the Chief, Transitions Services at Carlisle Barracks, Pennsylvania to complete the transfer of his benefits to his two sons.  He goes on to state that he did so in order to ensure that the installation expert on such matters was present to assist him and they completed the application on line together and hit the submit button.  It was not until April 2012 that his son applied for benefits and he discovered he was not approved for the transfer of benefits.

3.  The applicant provides a sworn statement from the Chief, Transitions Services at Carlisle Barracks indicating the applicant did make a timely application.  He also provides copies of his appointment and his application to transfer benefits.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the rank of colonel at Carlisle Barracks on 30 June 2011 when he was retired and was transferred to the Retired List effective 1 July 2011 after serving over 27 years of active service.

2.  In the processing of this case a staff advisory opinion was obtained from the U.S. Army Human Resources Command (HRC) Education Incentives Branch who opined that the applicant’s request should be approved because the applicant was eligible to transfer his benefits to his sons at the time.  It appears given the statement from the Chief of Transition Services the applicant received inadequate counseling in that he was not advised to verify the transfer had been completed by logging back on to the website.  The advisory opinion was provided to the applicant and he concurred with its contents.

3.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public 
Law 110-252, House of Representatives, 2642.  In July of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

4.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute the transfer of benefits only while serving as a member of the Armed Forces.  The VA 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 duty 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, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

5.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning on 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 required;

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

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

   d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;

   e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and

	f.  active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his record be corrected to show he applied for and the Army approved transferring his education benefits under the Post-9/11 GI Bill to his dependents prior to his retirement on 30 June 2011 has been carefully considered and is found to have merit.

2.  The Post-9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level.  It also appears the applicant had the assistance of the Chief of Transitions Services at the time and that individual witnessed the applicant submit his application.  However, it appears the applicant was not advised he had to confirm acceptance of his application. 

3.  Therefore, it appears reasonable to presume given the statement from the Chief, Transition Services that the applicant made his application for transfer of his benefits while he was still on active duty and was outprocessing and that he relied to his detriment on the subject matter expert who failed to properly inform him of the process for proper transfer of his benefits. 

4.  Therefore, given the circumstances in this case, it would serve the interest of equity to correct his record to reflect he applied to transfer his education benefits under the Post-9/11 GI Bill transferability provision prior to his retirement on       30 June 2011. 
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 education benefits to his dependents prior to retirement, provided all other 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)                                         AR20120009574



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ABCMR Record of Proceedings (cont)                                         AR20120009574



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