IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120010951 


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 military records to show he transferred his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states during the time he was retiring from the Army in 2009, he commenced his transition leave in July of 2009.  His education counselor did not know the facts about the Post-9/11 GI Bill and could not inform him of the stipulations associated with the bill at that time.  Had he known that he had to transfer his entitlements prior to his retirement date, 30 November 2009, he would have done so.  He did not realize the error until he applied for the 
Post-9/11 GI Bill benefits.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 November 2009
* his Certificate of Eligibility for benefits under the Post-9/11 GI Bill from the Department of Veterans Affairs (VA)

CONSIDERATION OF EVIDENCE:

1.  On 30 November 2009, he was retired and placed on the Retired List the following day.  He completed 21 years and 9 days of active service.

2.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Washington, DC, dated 17 August 2012, which recommended approval of the applicant's request to transfer his Post-9/11 GI Bill, educational benefits.  Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer education benefits prior to leaving military service.

	a.  His last day of active duty was 30 November 2009.  He would have been eligible to transfer the education benefit if he had transferred them before he left active service.

	b.  He had more than 20 years of service upon his retirement, so he was eligible to transfer to either his spouse or child.

	c.  The TEB online database shows he had two eligible family members enrolled in DEERS.  He was eligible to transfer benefits to his spouse and one child.  He did not complete the requirements in the TEB online database because he stated he was not aware of the requirement to transfer them prior to leaving service.

	d.  If he transferred his benefits prior to leaving military service he would have not incurred an additional service obligation because he had more than 20 years of service as of 1 August 2009.

	e.  There is no evidence of an adverse action in his record.

	f.  Soldiers should not be granted relief based on unawareness of the law, program, rules, or procedures, unless they 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 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.  His last day of military service was 30 November 2009, but he started his transition/retirement leave in July 2009 which placed him on leave within 90 days after the program's implementation.

	g.  A Soldier must initially request the transfer through the DOD TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information was automatically relayed to the VA.  The respective dependent must then submit an application for VA benefits.  He did not complete the requirement in the TEB online database for two of his dependents because he claims he was not aware of the requirement to transfer months to specific dependents prior to leaving the service.

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once he leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.  The TEB website shows he did not transfer benefits to his two dependents.

	i.  The VA is restricted to pay for educational benefits compensating no more than 1 retroactive year from the date a claim is received by the VA.  If he is granted relief, the beginning date for his dependents to use the transferred benefits would be the date of relief unless previous specific claims were submitted to the VA and verified by the VA upon approval.

3.  The advisory opinion was forwarded to the applicant for possible rebuttal; however, he has not responded.

4.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible member is 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 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.  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.  

DISCUSSION AND CONCLUSIONS:

1.  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 and became effective on 1 August 2009.  He commenced a period of transitional leave in July 2009 and he retired on 30 November 2009.  Therefore, he essentially was unavailable for counseling during the implementation phase (first 90 days of the program).

2.  His retirement date was 30 November 2009; however, he was on leave from July 2009.  It is reasonable to presume that had he been aware of the procedure to transfer his benefits while in an active duty status he would have done so.  Therefore, as a matter of equity, his records should be corrected to show he applied to transfer his educational benefits to his dependents in a timely manner prior to his effective date of retirement.

3.  Post-9/11 GI Bill benefits are paid by the VA.  The effective date of payments is determined by that agency.

BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 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)                                         AR20120010951



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ABCMR Record of Proceedings (cont)                                         AR20120010951



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