BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120012140 


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 educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his children.

2.  The applicant states it was not brought to his attention that the education benefits had to be distributed to his children during the time he was in an active status. 

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 4 August 1965.  

2.  Having had prior service in the Regular Army (April 1984 to February 1987) and the U.S. Army Reserve (February 1987 to March 1990), and after a break in service from March 1990 to October 1996, he enlisted in the Army National Guard on 17 October 1996 and he held military occupational specialty 21N (Construction Engineer Supervisor).  

3.  He served through multiple reenlistments or extensions in the ARNG in a variety of stateside assignments, including a period of active duty mobilization from 9 September 2004 to 28 December 2005, and he attained the rank/grade of staff sergeant (SSG)/E-6.

4.  He was discharged from the ARNG on 19 January 2011 and he was transferred to the Retired Reserve by reason of being medically unfit for retention.  His National Guard Bureau Form 23B (ARNG Retirement Points History Statement) shows he completed 17 years, 3 months, and 3 days of qualifying years of service toward non-regular retirement.  

5.  On 7 April 2011, the State of New Mexico, Department of Military Affairs, issued him a Notification of Eligibility for Retired Pay at Age 60 (15-year letter).  

6.  During the processing of this case, on 5 July 2012, an advisory opinion was obtained from the NGB.  The advisory official recommended approval of the applicant's request.  The official stated:

	a.  Public Law 110-252, as amended by 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.

	b.  the ARNG, 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. 

	c.  The applicant’s last day of service with the ARNG was 19 January 2011.  He was eligible for the Post 9/11 GI Bill but he did not complete a request to transfer the benefits on the DOD TEB online database before he left the service.

7.  On 3 January 2013, a copy of the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond. 

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.  The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post 9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the ARNG – Selected Reserve – from 17 October 1996 to 19 January 2011.  There is no evidence he attempted to transfer his Post 9/11 educational benefits to his family members while he was in the Selected Reserve.  

2.  The DOD, VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  While there may have been some confusion during the early stages after the implementation, the applicant did not retire until nearly a year after the program was implemented.
3.  The applicant's service and his sincerity are not in question.  However, since the applicant has been on active duty since the program was implemented in August 2009, over 18 months after the program was implemented, he had plenty of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  There is neither an error nor an injustice in the applicant's transfer of benefits processing.  

4.  Notwithstanding the NGB’s favorable opinion, the applicant has not shown an error or an injustice.  Therefore, he is not entitled to the requested relief.

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 that 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)                                         AR20120012140





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ABCMR Record of Proceedings (cont)                                         AR20120012140



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