BOARD DATE:	  3 January 2013

		DOCKET NUMBER:  AR20120010069 


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 correction of his record to allow him to transfer his Post-9/11 GI Bill education benefits.

2.  He states he was not informed of the requirement to transfer benefits while he was still in service.  He retired from the U.S. Army Reserve (USAR) on 1 June 2010.  His last unit was relocated from Fort Meade, MD to Fort Shafter, HI, with a detachment in Costa Mesa, CA.  As a result, Reservists assigned to the unit from the mid-Atlantic region had little or no ready-access to administrative or logistical support.  Although his impending mandatory retirement date was visible to administrative personnel in Costa Mesa that should have led to a timely, orderly, and accurate out-processing, all he received was a set of retirement orders in the mail.  He received nothing in advance and he had no opportunity to be counseled on his responsibilities for entitlements, including transfer of his Post-9/11 GI Bill benefits.  Upon learning about the Post-9/11 GI Bill entitlement, he inquired about transferring his benefits and learned he could not.

3.  He provides:

* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two Developmental Counseling Forms (DA Form 4856)
* DA Form 2823 (Sworn Statement)


CONSIDERATION OF EVIDENCE:

1.  On 3 June 2010, orders were issued to the applicant at his home address in Vienna, VA, releasing him from his USAR unit located in Costa Mesa and transferring to the Retired Reserve by reason of maximum authorized years of service.  The orders, as amended, show the effective date of his transfer was
1 June 2010.  His record shows he completed 29 years of qualifying service for retirement and he attained the rank/grade of colonel (COL)/O-6.

2.  His record does not include documentation of processing related to his transfer to the Retired Reserve.

3.  During the processing of this case, on 21 August 2012, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command.

	a.  The advisory official recommended disapproval of the applicant's request to transfer Post-9/11 GI Bill education benefits because he did not provide evidence showing he attempted to transfer benefits prior to leaving military service and/or that he was given false information about the rules of transferring education benefits.

	b.  The advisory official noted the applicant left service after the program's implementation on 1 August 2009, he would have been eligible to transfer benefits had he done so prior to leaving service, and he had three eligible family members.

	c.  The advisory official stated a Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless the Soldier left the service during the implementation phase (first 90 days) of the program.  The Army, Department of Defense (DOD), and Department of Veterans Affairs (VA) initiated a massive public campaign that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and transfer of education benefits.  The applicant's last day in service was 31 May 2010, which was not within 90 days after the program's implementation on           1 August 2009.

4.  A copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 3 October 2012, the applicant responded to the advisory opinion and provided additional documentation for consideration by the Board.  In his response, he reiterates that 


he was not informed of the requirements to transfer his Post-9/11 GI Bill education benefits.  He states he "received no counseling of any sort prior to [his] separation despite the fact the unit created a DA Form 4856 that states 'Not Available to Sign' and a DA Form 4856 signed by a unit retention NCO [he had] never met, who documented a retirement counseling that never happened."  He believes the issue is not that he failed to be aware of legal and procedural requirements, but that his unit failed in its responsibility to him.  

5.  Enclosed with his response to the advisory opinion, he provides:

	a.  A DA Form 4856, dated 30 April 2010, indicating he was counseled on 22 March 2010 on his decision to separate from the USAR and transfer to the Retired Reserve due to his mandatory removal date of 1 June 2010.  The space provided for his signature shows the entry "Not Available to Sign."  The space for the signature of the counselor contains a signature and the date of 1 May 2010.

	b.  A second DA Form 4856, dated 5 May 2010, indicating he received "retention exit counseling retirement."  The form lists several options regarding the applicant's future status, none of which show the applicant made the necessary elections.  The space provided for his signature is blank.  The space for the counselor's signature contains a signature dated 5 May 2010.

	c.  A DA Form 2823 completed by the applicant's unit administrator on 24 November 2011.  The unit administrator states individuals assigned to the unit in Costa Mesa but serving at Fort Meade did not have full-time staff support or facilities at Fort Meade.  All full-time support came from the Costa Mesa office.  As a result, the applicant and others were not properly counseled in accordance with Army Regulation 600-8-7 (Retirement Services Program); therefore, they were not fully supported in their retirement planning with regard to pay and benefits.

6.  On 22 June 2009, Department of Defense (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 may transfer benefits if, at the time of the approval of the 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.)

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of his record to allow him to transfer his Post-9/11 GI Bill education benefits.

2.  As stated in the advisory opinion, the Army, DOD, and VA initiated a massive public campaign that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and transfer of education benefits.  The probability is high that Soldiers who left service after the 90 days following the program's implementation were aware of the program.  He was transferred to the Retired Reserve 6 months outside of the 90-day window.  

3.  Considering the lack of administrative support resulting from his geographical separation from his assigned unit, it was in his best interest to seek information regarding his benefits elsewhere.  He does not indicate why he did not do so.  While his unit did fail him to a degree, it is reasonable to presume that had he been proactive prior to his mandatory removal date, he could easily have obtained the necessary information to effect a transfer of his Post 9/11 GI Bill education benefits prior to this separation date.

4.  In view of the foregoing, there is no 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 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)                                         AR20120010069



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ABCMR Record of Proceedings (cont)                                         AR20120010069



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