IN THE CASE OF:	  

		BOARD DATE:	    20 August 2013

		DOCKET NUMBER:  AR20120021977 


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 transferred his educational benefits to his family members under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states that during the period of his transition processing the Transition Center at Fort Leavenworth, KS, was not fully aware of the process and procedures for Soldiers to transfer their educational benefits.

3.  The applicant provides copies of his:

* DD Form 2648 (Preseparation Counseling Checklist)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* NGB Form 22 (National Guard Bureau (NGB) Report of Separation and Record of Service)

CONSIDERATION OF EVIDENCE:

1.  The applicant, an Army National Guard (ARNG) aviation lieutenant colonel with significant prior active service, reached the 26-year mandatory point and was transferred from the Missouri ARNG to the Retired Reserve, effective 1 October 2009.  However, he was on active duty from 19 March to 30 September 2009 until he was transferred.


2.  His DD Form 214 shows he had 6 months, and 15 days of net active service this period and 20 years, 3 months, and 28 days of total prior active service.

3.  There is no evidence that the applicant's dependents made a previous claim to the Department of Veterans Affairs (VA) for educational benefits.

4.  The Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY recommended granting relief in numerous similar cases because the applicants separated from active duty within 90 days after the 1 August 2009 implementation of the Post-9/11 GI Bill Transferability Program.  Many Soldiers who left military service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving active service.  

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 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

6.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may transfer 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 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, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his records to show he transferred his educational benefits to his eligible family members under the TEB provision of the Post-9/11 GI Bill.

2.  The applicant had completed more than 20 years of active service at the time of retirement; therefore, he had no additional service requirement and he would have been eligible to transfer his educational benefits to his eligible family members if he had done so before he left the service.

3.  The TEB provision of the Post 9/11 GI Bill was implemented on 1 August 2009.  The applicant's retirement date was 30 September 2009.  During the initial implementation of the program many Soldiers of all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  This confusion was exacerbated with heavy use of the Department of Defense website and the lack of proper log-in credentials for those who may have signed out on transition leave within 90 days of the programs implementation.  Similarly, officials at some education centers may also have been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  Therefore, it would serve the interest of equity to correct the applicant's record to reflect he transferred his educational benefits to his eligible family members while he was still serving on active duty.

BOARD VOTE

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X____ 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 his Post-9/11 GI Bill benefits to his eligible family members prior to retirement, 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)                                         AR20120021977



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ABCMR Record of Proceedings (cont)                                         AR20120021977



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