IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120012592 


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 records to show he applied to transfer his education benefits to his dependents under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill prior to leaving the military. 

2.  The applicant states, in effect, he was medically retired due to an injury he sustained while serving in Afghanistan.  Orders, dated 21 August 2009, placed him on the Temporary Disability Retired List (TDRL) effective 18 November 2009.  He contends that he was told he was ineligible to transfer his education benefits to his dependents under the TEB provision of the Post-9/11 GI Bill prior to retirement due to all of the confusion when the program was implemented.

3.  The applicant provides TDRL orders, permanent retirement orders, and two DD Forms 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant's record contains Headquarters, 1st Infantry Division, Fort Riley, Kansas, Orders Number 233-0005, dated 21 August 2009, showing he was assigned to the Transition Center, Fort Riley, Kansas for placement on the TDRL effective 19 November 2009.  

2.  His DD Form 214 shows he was retired in the rank of captain after completing 19 years, 3 months, and 15 days of active duty service.

3.  Orders issued by the U.S. Army Physical Disability Agency show he was permanently retired on 28 March 2012.

4.  During the processing of this case, an advisory opinion was obtained from the Chief, Education and Incentives Branch of the U.S. Army Human Resources Command, Fort Knox, KY, who recommended administrative relief be granted to the applicant because he was on transition/medical leave for retirement within 
90 days of implementation of the program.  This official states that although significant measures were taken to disseminate the information to all Soldiers within Army components during the initial phase of the program, many Soldiers who left service or started transition leave during the first 90 days of the program were not fully award of the requirement to transfer prior to leaving military service.  

5.  The applicant was provided a copy of the advisory opinion in order to afford him the opportunity to reply to its contents.  No response was received.  

6.  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.

7.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The Department of Veterans Affairs 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.

8.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 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 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

DISCUSSION AND CONCLUSIONS:

1.  The Post 9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level.  As confirmed by the Education and Incentives Branch advisory opinion, specific guidance on the requirement to apply for the benefit prior to leaving military service was not fully available to members who transitioned within the first 90 days after implementation of the program on 1 August 2009.

2.  The evidence of record confirms the applicant was on transition leave within 90 days of implementation of the program.  In view of the fact that transfer application procedures were not fully implemented at the time he departed on transition leave, it would serve the interest of equity to correct his record to reflect he applied to transfer his education benefits under the Post 9/11 GI Bill transferability provision upon implementation of the program while still on active duty.


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 his education benefits to his dependents prior to retirement under the TEB provision of the Post 9/11 GI Bill provided all other 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)                                         AR20120012592



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ABCMR Record of Proceedings (cont)                                         AR20120012592



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