BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120010364 


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 not informed through a briefing that he must take appropriate steps prior to transferring to the U.S. Army Reserve (USAR) Control Group (Reinforcement, or Individual Ready Reserve (IRR)).  He fulfilled his service and elected a transfer to the IRR.  He is currently serving in the IRR at Landstuhl Regional Army Medical Center and can be called upon at any time.

3.  The applicant provides Orders 09-307-00016 transferring him the USAR Control Group (Reinforcement). 

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Regular Army (October 1987 to June 1993) and the USAR (July 1993 to July 1998), the applicant was appointed as a Reserve commissioned officer and executed an oath of office on 18 July 1998.  

2.  He served in a variety of troop program units (TPU) of the USAR and he was promoted to captain on 1 May 2004.  

3.  On 24 July 2008, the U.S. Army Human Resources Command (HRC), St. Louis, MO, issued him a Notification of Eligibility for Retired Pay at Age 60      (20-year letter).  
4.  On 24 December 2008, he completed a DD Form 93 (Record of Emergency Data) wherein he indicated he was married to "Doxxx" and they have two daughters, Chxxxxxxx (born in 2001) and Saxxxx (born in 2004). 

5.  On 3 November 2009, his higher headquarters published official orders reassigning him from his TPU to the USAR Control Group (IRR) effective 3 November 2009 by reason of un-resolvable employment conflict. 

6.  His current AHRC Form 249-E (Chronological Statement of Retirement Points) show at the time of his transfer to the IRR, he had completed 21 years and 1 day of qualifying years of service toward non-regular retirement.  

7.  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.  

8.  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.

9.  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.

10.  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.  

11.  The DOD and the 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.  

12.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) establishes responsibility and provides procedures for the appointment of commissioned and warrant officers in the Reserve Component of the Army.  This regulation states in part that the Selected Reserve can be defined as part of the Ready Reserve of each Reserve component consisting of units and individuals who participate actively in paid training periods and serve on paid active duty for training each year, such as USAR troop program units.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was transferred to the USAR Control Group (IRR) on 3 November 2009.  According to law and regulation:

   a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent (on or after 1 August 2009).  

   b.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program.  The Army, DOD, and the 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.  

   c.  The applicant transferred to the IRR on 3 November 2009, which was within 90 days after the program's implementation, and it is reasonable to presume that he stopped attending drills before that.
2.  During the initial implementation of this 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's implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.

3.  It is reasonable to presume that had he been fully aware of the procedure to transfer his benefits while in the Selected Reserve he would have done so.  Therefore, as a matter of equity his records should be corrected to show he did so in a timely manner prior to his effective date of transfer to the IRR.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  __X______  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 benefits to his eligible family members prior to his transfer to the IRR, provided all other program 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.


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ABCMR Record of Proceedings (cont)                                         AR20120010364



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