BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120009634 


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 educational benefits under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill to his family members.

2.  The applicant states:

* he was never informed of Post-9/11 GI Bill or the requirement to be on active duty to transfer this benefit
* he believes he should have been informed of his eligibility during his outprocessing briefing
* he was not required to serve any additional service and had met the requirements; he retired on 30 November 2009

3.  The applicant provides:

* Orders 177-023, issued by Joint Force Headquarters, Massachusetts National Guard, Milford, MA, dated 26 June 2009
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 16 July 2006, 9 November 2007, and 30 November 2009

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the Massachusetts Army National Guard (MAARNG) on 31 March 1980.  He entered active duty on
21 May 1986 in an Active Guard Reserve (AGR) status and he served through multiple extensions or reenlistment.  

2.  He served in a variety of stateside assignments with periods of mobilization and he attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On 30 November 2009, he retired by reason of sufficient service for retirement and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 December 2009.  He was credited with 24 years and 27 days of creditable active service.

4.  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 approval and stated the applicant gained eligibility for the Post-9/11 GI Bill benefit before he left the service; however, he did not complete a request to transfer benefits on the TEB online database before he left the service.  The NGB official also stated:

	a.  Public Law 110-252 and its amendment Public Law 111-377 identifies the qualification to receive the Post-9/11 GI Bill, one of which is that the service member must have performed on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill.  Public Law 110-252 establishes legal requirements on the transferability 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.

	b.  The ARNG, Department of Defense (DOD), and the Department of Veterans Affairs (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 during the initial phase of the program, many Soldiers who left service during the first 90 days of the program were not fully aware of the requirements to transfer prior to leaving the military.  The Soldier retired within 90 days after program's implementation.

	c.  The applicant's effective date of discharge from the ARNG was 30 November 2009.  The State recommends relief and concurs with the recommendation.

5.  On 5 November 2012, the applicant was provided with a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.
6.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education 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 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 from 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.

7.  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.

8.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was fully eligible to transfer his educational benefits under the TEB prior to retirement, but he did not do so.  The program was implemented in July 2009.  The applicant retired on 30 November 2009.

2.  The DOD, VA, and the Army conducted a massive public campaign plan 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 family member.
3.  During the initial implementation of this new program, many Soldiers in all grades were confused regarding their eligibility and/or the procedure to apply for such benefits.  This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  The applicant's retirement date was 30 November 2009.  He did not complete a request to transfer benefits on the DOD TEB online database before he left the service.  His last day in the service was not within 90 days of program implementation.  There is no evidence he exercised due diligence.  The applicant had access to information regarding the requirement to request TEB through the DOD TEB online database.  He did not do so.  There is neither an error nor an injustice in the applicant's transfer of benefits processing.

5.  The requirement to transfer the benefit while a member is in on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board.  Additionally, the ABCMR does not correct records solely for the purpose of establishing entitlement to other programs or benefits.

6.  Notwithstanding the NGB advisory opinion, the applicant failed to transfer the benefit while on active duty, as required by law, and he was outside the 90-day window of the program implementation.  Therefore, there is an insufficient evidentiary basis for granting his 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)                                         AR20120009634



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ABCMR Record of Proceedings (cont)                                         AR20120009634



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