IN THE CASE OF:	

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120009606 


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 military records to show that he had requested to transfer his Post-9/11 Montgomery GI Bill (MGIB) educational benefits to his dependents and that his request was received and approved.

2.  The applicant states he received unanticipated discharge orders, dated 
8 December 2009 and postmarked 23 December 2009, in the mail.  He was not given any pre-separation counseling or unit out-processing; therefore, he was unaware that any transfer of his Post-9/11 MGIB benefits had to be done while he was still in the Ready Reserve.

3.  The applicant provides copies of:

* Discharge Orders
* Postmarked envelope from U.S. Army Reserve Command (USARC)
* DD Form 256A (Honorable Discharge Certificate)
* DD Form 214

CONSIDERATION OF EVIDENCE:

1.  On 31 December 2009, the applicant was discharged from the U.S. Army Reserve in the rank of major, pay grade O-4.  He had completed approximately 15 years of military service.

2.  During the processing of this case, an unfavorable advisory opinion was obtained from Headquarters, U.S. Army Human Resources Command, Chief, Education Incentives Branch, Fort Knox, Kentucky.  The advisory opinion states the applicant would have been eligible to transfer the benefit had he done so prior to being discharged from the Selected Reserve.

	a.  He did not provide evidence showing he attempted to transfer his MGIB benefits prior to discharge.

	b.  He left active service in 1996 under the Voluntary Separation Incentive program.  He did not retire from active duty.

	c.  He later served in the Selected Reserve and the Individual Ready Reserve until his discharge on 31 December 2009.  He did not have a sufficient number of qualifying years in the Reserve to be eligible for retirement from the Selected Reserve.

	d.  He was non-selected for promotion to lieutenant colonel resulting in mandatory separation from the Selected Reserve.

	e.  He was not on transitional leave during the first 90 days of the implementation of the MGIB transfer program.

3.  The advisory opinion further states:

	a.  the Soldier must initially request to transfer benefits on the Department of Defense's Transfer of Education (TEB) online database;

	b.  the TEB online data base has been operational since 29 June 2009.  

	c.  the Army, Department of Defense, and the Department of Veterans Affairs (VA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues about the
Post-9/11 MGIB and subsequent transfer of education benefits; and

	d.  a Soldier 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.

4.  On 28 June 2012, a copy of the advisory opinion was sent to the applicant for his information and opportunity to rebut.

5.  On 27 July 2012, the applicant wrote a rebuttal response to the unfavorable advisory opinion.  He argued that:

	a.  his eligibility for the Post-9/11 MGIB benefits derived from his service in support of Operation Enduring Freedom from March 2003 through February 2004 including a 9-month deployment to Afghanistan;

	b.  from November 2007 until December 2009 he was serving in the National Capital Region with one of the premier cyber-defense organizations within the Reserve;

	c.  he commenced Phase I of the Command and General Staff College in 2008 and graduated in June 2009;

	d.  throughout his service he used the Army Knowledge Online website and email extensively with no recollection of ever reading an email or seeing any announcements regarding the transferability of Post-9/11 MGIB benefits;

	e.  he only learned about the ability to transfer benefits from a seminar through his civilian employer in 2010; and

	f.  the public campaign was not effective in reaching the target audience.

6.  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.  In July 2008, Congress passed a law for the Post-9/11 MGIB which went into effect on 1 August 2009.

7.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service 
member may execute 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.

	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; and

	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.

8.  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 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, in effect, contends that his military records should be corrected to show that prior to discharge he requested to transfer his Post-9/11 MGIB educational benefits to his dependents and his request was received and approved.

2.  The applicant states he received unanticipated discharge orders, dated
8 December 2009 and postmarked 23 December 2009, in the mail.  He was not given any pre-separation counseling or unit out-processing; therefore, he was aware that any transfer of his Post-9/11 MGIB benefits had to be done while he was still in the Ready Reserve.

3.  The available evidence shows the applicant was a multiple non-select for promotion to lieutenant colonel.  As such, he knew, or should have known that he was going to be discharged.

4.  The applicant contends the public campaign was not effective in reaching the target audience.  This fact was acknowledged by the proponent of the program.  As a result, those Soldiers who were separated within the first 90 days of the program implementation are afforded additional consideration for the possibility of not being fully aware of the program requirements.  However, after that 90-day period, no such consideration is deemed appropriate.

5.  The applicant was discharged on 31 December 2009, approximately 6 months after the TEB was operational.  This was about 3 months after completion of the implementation phase (first 90 days) of the program.

6.  In view of the above, and absent sufficient evidence showing that he reasonably was unaware of the program until 2010, his request should be denied.

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)                                         AR20120009606



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ABCMR Record of Proceedings (cont)                                         AR20120009606



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