IN THE CASE OF:	  

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120011048 


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 approval to transfer his Post-9/11 GI Bill benefits to his family members.

2.  The applicant states he was not informed of the requirement to transfer the entitlement prior to leaving the service.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and an Internet article titled, "Taking Care of Soldiers."

CONSIDERATION OF EVIDENCE:

1.  The applicant's U.S. Army Human Resources Command Form 249-E (Chronological Statement of Retirement Points) indicates he served in the U.S. Army Reserve (USAR) from 6 May 1987 through 6 December 2010.  It also shows he earned 9 inactive duty points during retirement year ending (RYE)        5 May 2010 and 4 inactive duty points during RYE 6 December 2010.

2.  During the processing of this case, an advisory opinion was obtained from the Chief, Education and Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, who recommends disapproval of the applicant's request because he did not provide evidence showing he attempted to transfer the benefits prior to leaving military service.  He also failed to provide evidence showing he was given false information by a reliable source about the rules for transferring educational benefits.  The advising official further stated that 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, and the 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.  The applicant's last day in the service was 6 December 2010 which was not within 90 days after the program's implementation.

3.  The applicant was provided a copy of the advisory opinion in order to afford him the opportunity to reply to its content.  He responded and stated that his last drill (unit training assembly) as a member of the USAR in Puerto Rico was in November 2008.  The process of his medical retirement started in December 2008 and ended in December 2010.  During this time, there were no briefings and/or communication for Reserve Soldiers regarding educational and other benefits.  He was not informed of the benefits at any time and there is no evidence showing he rejected or accepted the benefits or evidence showing he was informed of the benefits before or during his medical retirement process.  In May 2012 during a college tuition briefing for his son, he learned through an employee of the university that the educational benefits existed.  He searched the Internet and found the official site for the Post-9/11 GI Bill which states that veterans who believe they were not informed of the requirement to transfer the educational benefits while still in service could request a correction of military records.

4.  He provided an internet article titled, "Taking Care of Soldiers," that indicates a pre-retirement seminar was conducted on 14 July 2012 at Fort Buchanan, Puerto Rico.  He pointed out that the article indicates that up to that point, the troops assigned to the USAR in Puerto Rico retired without receiving any formal guidance in the process and that it was the first seminar conducted in Puerto Rico as part of a pilot program established by the USAR Command.  He also pointed out that the USAR conducted a study several years ago and found out there was a large population of "gray area" retirees who were not following a process to retire from the military.

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 of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.  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 duty 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, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

6.  The program guidance stipulates that if a service member becomes retirement eligible during the period on 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;

	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

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  His contention that he was not informed of the requirement to transfer the entitlement prior to leaving the service was noted.  However, the governing law is very specific in requiring that a member register and transfer benefits prior to leaving the Armed Forces in order to qualify for the program.
3.  The Army has generally granted relief to members who left the service within the first 90 days after implementation of the program on 1 August 2009.  In this case, he was not separated until 6 December 2010, over 16 months after implementation of the program, and his Statement of Retirement Points shows he attended active duty for training after that 90-day period.  As a result, equity relief in this case would not be appropriate given it would be contrary to law.

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)                                         AR20120011048



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ABCMR Record of Proceedings (cont)                                         AR20120011048



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