IN THE CASE OF:	   

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120021772 


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, correction of his records to show his eligible family members were listed in the official Transfer of Education Benefits online database and approval to transfer his Montgomery GI Bill (MGIB) educational benefits to his eligible family members under the Post-9/11 GI Bill transferability option.

2.  The applicant states he was not fully informed of the rules for transferring his educational benefits to his dependent(s) prior to retiring from military service.  Specifically, he was not informed of the requirement to transfer his benefits prior to retiring from military service.

	a.  He states he served on active duty for 2 years after 11 September 2001, including Iraq in 2004 and Afghanistan in 2009.  It was his understanding that retirees could transfer their MGIB benefits to a dependent only if the retirement occurred prior to 1 November 2009.  He retired on 20 March 2010 approximately 6 months later and he didn't know the Post-9/11 GI Bill transfer option existed.  When he learned of the program, the deadline for him to transfer his benefits had already passed.

	b.  He states the purpose of the program is to provide Soldiers with the ability to transfer their educational benefits to their dependents.  The program was not publicized in an effective and consistent manner.  As a result, some Soldiers who earned the benefit have been penalized because they had the misfortune of serving overseas and not being aware of the program.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the U.S. Army from 16 October 1985 through 17 April 1986.

2.  He was appointed as a Reserve commissioned officer in the rank of second lieutenant on 18 April 1986 with concurrent call to active duty.  He was honorably released from active duty (REFRAD) on 17 September 1989.

3.  He was promoted to lieutenant colonel in the U.S. Army Reserve (USAR) on 30 December 2005.

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was ordered to active duty in support of Operation Enduring Freedom on 9 January 2009 as a member of the 143rd Combat Support Command.

5.  Headquarters, 143rd Combat Support Command, Sustainment Expeditionary, Orlando, FL, Orders 09-356-00003, dated 22 December 2009, reassigned the applicant to the USAR Control Group (Retired Reserve) effective 20 March 2010.

	a.  He served in Afghanistan from 15 February to 31 December 2009.

	b.  He was honorably REFRAD on 9 February 2010.

	c.  He completed 1 year, 1 month, and 1 day of net active service during this period; 6 years, 2 months, and 12 days of total prior active service; and 17 years, 1 month, and 6 days of total inactive service.

6.  Public Law 110-252 (Supplemental Appropriations Act 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members.  This public law amended Title 10, U.S. Code, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.

	a.  An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least:

		(1)  6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces or

		(2)  the years of service as determined in Army regulations and established by the Secretary of the Army.

	b.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement as follows:

		(1)  to the individual's spouse,

		(2)  to one or more of the individual's children, or

		(3)  to a combination of the individuals identified above.

	c.  To satisfy this legally-imposed constraint, a child must be an eligible family member at the time of transfer.  To be considered an eligible family member, a child must be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and be eligible for DEERS benefits.

		(1)  Children lose eligible family member status upon turning age 21 or at marriage,

		(2)  eligible dependent status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried as verified by DEERS, and

		(3)  family member children can use transferred benefits up to age 26.

	d.  Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.

7.  The Department of Defense (DOD), Department of the Army (DA), and Department of Veterans Affairs (VA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post-9/11 GI Bill and subsequent transfer of entitlements was published well in advance of the implementation date of 1 August 2009.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his MGIB educational benefits should be transferred to his eligible family members under the Post-9/11 GI Bill transferability option because he qualified to transfer his educational benefits to them, but he was not provided the appropriate information on how to transfer his educational benefits to his dependents prior to retiring from military service.

2.  Records show the applicant was serving on active duty and as a member of the Selected Reserve on or after 1 August 2009.  Thus, he was eligible to transfer his educational benefits to his eligible family members under the 
Post-9/11 GI Bill.

3.  The applicant redeployed from Afghanistan on 31 December 2009, he was REFRAD on 9 February 2010, and he transferred to the USAR Control Group (Retired Reserve) effective 20 March 2010.

4.  DOD, DA, and the VA conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  While there may have been some confusion during the early stages after the implementation of the program on 1 August 2009, the applicant did not take any action to transfer his benefits during the period that he was serving on active duty after the program was implemented, including during the 40-day period of his transition processing prior to being REFRAD, or during the 40-day period after his REFRAD and prior to being transferred to the Retired Reserve.  Thus, there is no evidence he exercised due diligence.

5.  Therefore, considering all of the evidence and information presented by the applicant together with the evidence of record, there is no basis for granting the applicant's 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 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)                                         AR20120021772



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ABCMR Record of Proceedings (cont)                                         AR20120021772



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