IN THE CASE OF:	  

		BOARD DATE:  5 February 2013

		DOCKET NUMBER:  AR20120011004 


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 was eligible to transfer his educational benefits (TEB) under the Post-9/11 GI Bill to his daughter.

2.  The applicant states, in effect, that he was not informed of the requirements for TEB prior to retirement.  He contends that he was on active duty in Iraq in 2009 and remained on active duty through June 2011 due to injuries he received while in Iraq.  The briefings he received made it sound like he could transfer his benefits anytime while his children were under the age of 21 years.

3.  The applicant provides copies of:

* Email, subject: Post-9/11 Information, dated 16 April 2012
* Paragraph 9-19, Army Regulation 601-280 (Active and Reserve Components Enlistment Program)
* Post-9/11 GI Bill Transferability Policy Summation
* Qualifying Service for the Post-9/11 GI Bill
* Highlighted extracts of National Guard regulations

CONSIDERATION OF EVIDENCE:

1.  On 14 July 1981, the applicant enlisted in the Pennsylvania Army National Guard (PAARNG).  He was subsequently assigned for duty with the 28th Aviation Platoon located in Harrisburg, PA.

2.  On 23 October 2001, the applicant was notified of his eligibility (20-year letter) for retired pay at age 60.

3.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 28 June 2011, reports that he had been ordered to active duty in support of Operation Iraqi Freedom and had served in Iraq from 13 April to 
12 December 2009.  The remarks block indicates that had been a medical holdover.

4.  On 22 November 2011, the applicant submitted his request for separation from the PAARNG and transfer to the U.S. Army Reserve Control Group (Retired Reserve) with an effective date of 1 March 2012.  At the time, he had completed 30 qualifying years of service for a non-regular retirement.

5.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives, 2642.  In July 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

6.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service 
member may execute TEB 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.

7.  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 required;

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

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

	d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;

	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and

8.  Headquarters, Department of the Army (HQDA), Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch provides the following information:

	a.  The Army, Department of Defense and the VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues; and that information on the program and subsequent transfer of entitlements were published well in advance of the implementation date of 1 August 2009.

	b.  However, 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 DOD 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 have also been confused regarding the implementation instructions and may not have conducted proper counseling. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was eligible to transfer his education benefits under the Post-9/11 GI Bill to his daughter.  He argues that he was not told about the program or afforded an opportunity to transfer his education benefits prior to separation.

2.  The available evidence clearly shows that the applicant was separated from the PAARNG and transferred to the USAR Retired Reserve in 2012.

3.  The applicant's transfer to the Retired Reserve was considerably more than 90 days after the implementation of the TEB program in 2009, putting him well outside of the period when Soldiers were given consideration for the early confusion about the program.

4.  The applicant’s request to correct his record to show he was eligible to transfer his Post-9/11 GI Bill benefits has been carefully considered.  However, the governing law is very specific in requiring that a member be in an active status in order to qualify for the program.  As a result, equity relief in this case would not be appropriate given it would be contrary to law.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20120011004





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ABCMR Record of Proceedings (cont)                                         AR20120011004



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