BOARD DATE:  13 December 2012

		DOCKET NUMBER:  AR20120010807 


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, an exception to policy to transfer her educational benefits to her dependent under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 

2.  The applicant states she was instructed by the Department of Veterans Affairs (VA) representative that she had to wait until her dependent was accepted by a college before she could transfer the education benefits.  She was never informed that she had to apply for the benefit prior to retirement.  

3.  The applicant did not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  After completing over 20 years of active service, the applicant retired from the Regular Army on 31 August 2009.

2.  During the processing of this case, a favorable advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army (HQDA).  The opinion recommended granting relief to the applicant because she was separated from active duty within 90 days of implementation of the TEB provision of the Post-9/11 GI Bill on 1 August 2009.  The advisory official acknowledged that many Soldiers who left military service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving active service.  The advisory official stated:
	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of TEB to dependents on or after 1 August 2009.  The applicant's last day of active service was 31 August 2009.  Therefore, she would have been eligible to transfer her educational benefits while still on active duty.

	b.  The applicant was eligible to participate in the program and she had dependents eligible to receive those benefits.

	c.  The applicant had more than 20 years of service when she retired; therefore, she would not have incurred an additional service obligation.  Further, she had no record of adverse action.

3.  On 1 November 2012, a copy of the advisory opinion was sent to the applicant for her information and an opportunity to submit comments and/or rebuttal.  She did not respond.

4.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational 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.  General eligibility criteria are as follows:

	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.

	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.

5.  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 is required.

	b.  Service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service is required.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request, in effect, for an exception to policy to transfer education benefits to her dependent under the TEB provision of the Post-9/11 GI Bill has merit.

2.  The applicant had over 20 years of service upon retirement, no additional service requirement, no evidence of any adverse action, and she would have been eligible to transfer the benefits if she had done so before she left the service.

3.  During the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  This confusion was exacerbated with heavy use of the Department of Defense website and the lack of proper log-in credentials for those who may have signed out on transition leave within 90 days of the program implementation.  Similarly, officials at some education centers may also have been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  It would serve the interest of equity to correct her record to reflect she transferred her educational benefits while still serving on active duty as recommended in the Deputy Chief of Staff, G-1, HQDA, advisory opinion.

BOARD VOTE:

__x______  _x_______  _x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 her application both timely and accurately and the Army approved her request to transfer education benefits to her dependents under the TEB provision of the Post-9/11 GI Bill prior to retirement, 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.

ABCMR Record of Proceedings (cont)                                         AR20110019081



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ABCMR Record of Proceedings (cont)                                         AR20120010807



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