IN THE CASE OF:	  

		BOARD DATE:	 20 December 2012

		DOCKET NUMBER:  AR20120010052 


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:

* prior to his retirement he was not told he needed to transfer his Post-9/11 GI Bill benefits to his children
* he had transferred some benefits to his oldest child prior to retirement without any complications
* he assumed he would be able to follow that process in retirement
* he lives in Ohio, but was attached to and trained with the Louisiana Army National Guard (LAARNG)
* he has always been involved with missions making it difficult to have an exit interview prior to his discharge
* with several deployments and 20 years of service, he feels he has earned the benefits and should be able to transfer them to his children
* he does not have the rejection letter as it was destroyed after a phone call told him he needed to apply to transfer the benefits prior to his discharge

3.  The applicant provides a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).


CONSIDERATION OF EVIDENCE:

1.  The applicant retired from the LAARNG as a colonel/O-6 effective 31 December 2010.

2.  During the processing of this case, a favorable advisory opinion was obtained from the Acting Chief, Personnel Policy Division, NGB.  The advisory official recommended granting relief to the applicant because he had transferred 4 months of benefits to his dependent prior to his retirement and he is eligible to transfer additional benefits in his retirement.  The advisory official also stated:

	a.  Public Law 110-252 and its amendment establish legal requirements for 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 applicant's last day of service was 31 December 2010.  No evidence of education counseling prior to separation from service was found in his records. 
He transferred 4 months of educational benefits to his dependent child, C____ E. H____, effective 8 January 2010.  It was noted in this review that the TEB website indicates no action was taken by the applicant to allocate months of benefits to the remainder of his other eligible dependents before his retirement from the ARNG effective 31 December 2010.

	c.  Changes to the allocation can be made at any time, including after the service member leaves military service, provided 1 month of benefits was allocated prior to separation.

	d.  The advisory official recommends administrative relief for the applicant.  The LAARNG concurred.  The recommendation is due to the possibility of insufficient counseling provided regarding the allocation of benefit months for the remainder of his eligible dependents before leaving military service.

3.  The applicant was provided with a copy of this advisory opinion, but he did not respond.

4.  On 22 June 2009, the Department of Defense (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 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 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.

5.  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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

6.  A Soldier must initially request to transfer benefits on the Department of Defense's TEB online database.  The TEB online database was operational 29 June 2009.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a member leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates 0 months, and subsequently leaves military service, they are not authorized to transfer unused benefits.

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.  The U.S. Army Human Resources Command advised in similar cases that specific guidance on the requirement to apply for the benefits prior to leaving military service was not fully available to members who transitioned within the first 90 days after implementation of the program on 1 August 2009.

8.  The Army, DOD, and 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 educational benefits.


DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was fully eligible to transfer his educational benefits under the TEB prior to retirement.

2.  The advisory official noted the applicant transferred 4 months of educational benefits to his dependent child, C____ E. H____, effective 8 January 2010.  He also noted that the TEB website indicates no action was taken by the applicant to allocate months of benefits to the remainder of his other eligible dependents before his retirement from the ARNG effective 31 December 2010.  Changes to the amount of months allocated to dependents can be made at anytime, to include once a member leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates 0 months, and subsequently leaves military service, they are not authorized to transfer unused benefits.

3.  Notwithstanding the advisory official's recommendation to grant relief, relief in this case is not appropriate.  DOD, the 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.  There may have been some confusion during the early stages after the implementation; however, the applicant retired on 31 December 2010, well over a year after the program was implemented.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20120010052



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