IN THE CASE OF:	  

		BOARD DATE:	    16 May 2013 

		DOCKET NUMBER:  AR20120019674 


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

2.  The applicant states:

   a.  He was not provided proper active duty counseling on the transferability of benefits under the Post-9/11 GI Bill because the guidance addressing the transfer was issued after he cleared the education center and while he was on transition leave.

	b.  He entered active duty on 14 October 1987 and selected the GI Bill and the Army College Fund as his enlistment options.  After 21 1/2 years of honorable service, a tour of duty in Iraq, and receipt of the Bronze Star Medal and Combat Action Badge, he requested retirement in the Spring of 2009.  He received an approved retirement date of 31 May 2009.

	c.  When he learned of the new version of the GI Bill after consulting the education center, he requested a 90-day extension to meet the requirements of the new GI Bill with a new retirement date of 31 August 2009.

	d.  He began his clearing process on 31 May 2009 and cleared the education center on 2 June 2009.  At that time there was no published guidance and the education counselor assured him that he met the requirements and would be able to transfer his benefits when his children were ready to enter college as long as it had not been over 15 years from the date of his separation.  There was no published guidance advising of the requirement to transfer the benefits prior to leaving military service.

	e.  He was on transition leave from 14 June 2009 until his retirement date of 31 August 2009.   The Post-9/11 GI Bill guidance was issued while he was on transition leave.  Although he was on transition leave, he was still on active duty and entitled to counseling on these benefits as described.

	f.  In the Fall of 2011 as his second child was preparing to start school, he went to the website to transfer his benefits and then learned he wasn't eligible to transfer the benefits.  He went to the Fort Meade Education Center and was advised that he couldn't transfer the benefits because the benefits were required to have been transferred before he left military service.  He was also advised to find out about an exception to policy.  Prior to his retirement, he did everything he was directed to do by the education center to ensure his ability to transfer his benefits.

3.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* 2008 separation orders
* DA Form 137-1 (Unit Clearance Record)
* DA Form 137-2 (Installation Clearance Record)
* letter from an Army Continuing Education System counselor
* DA Form 31 (Request and Authority for Leave)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter of support
* Department of Veterans Affairs (VA) brochure titled, "The Post-9/11 Veterans Education Assistance Act of 2008"

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 14 October 1987.

2.  He provides copies of:

* orders releasing him from active duty with an effective date of 31 May 2009 with placement on the Retired List on 1 June 2009
* orders changing his retirement date to 31 August 2009
* a DA Form 137-2, dated 12 June 2009, which shows he cleared the education center on the same day
* a letter from an Army Continuing Education System counselor which stated the applicant would receive up to 36 months of educational benefits and have 10 years from his separation date to use them
* an approved DA Form 31 which shows he requested transition leave from 14 June to 31 August 2009

3.  He was honorably retired on 31 August 2009.  He was credited with completing 21 years, 10 months, and 17 days of net active service with no lost time.

4.  He also provides a letter, dated 12 October 2012, wherein the individual states he was the applicant's supervisor from January 2008 to 31 August 2009.  The individual also stated the applicant had an early approved retirement date, but wanted to delay his retirement date until 1 September 2009 in order to transfer his educational benefits to his children and the applicant believed he had met all of the criteria to do so.  He strongly recommended allowing the applicant to transfer his entitlements to his dependents.

5.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible individual 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 for 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.

6.  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.

7.  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 for administration of the program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to allow him to transfer his educational benefits to eligible dependents under the TEB provision of the Post-9/11 GI Bill as an exception to policy.

2.  The evidence of record shows he was honorably retired on 31 August 2009 after completing more than 21 years of creditable active service.  The Chief, Education Incentives Branch, U.S. Army Human Resources Command, has previously opined that although significant measures were taken to disseminate information regarding the transferability of unused Post-9/11 GI Bill benefits, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer the benefits prior to leaving military service.

3.  The applicant's last day of active service was 31 August 2009 which was within 90 days of implementation of the program.  However, he was on transition leave during this time and he may not have received sufficient information to take the appropriate actions.  It appears he was not aware of the requirement; therefore, none of the required steps to transfer his benefits were taken.

4.  In view of the foregoing and as a matter of equity, his records should be corrected to show he is eligible to transfer his educational benefits to either his spouse or children under the TEB provision of the Post-9/11 GI Bill as recommended below.


BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 family members prior to 31 August 2009, 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)                                         AR20120019674



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ABCMR Record of Proceedings (cont)                                         AR20120019674



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