IN THE CASE OF: 

		BOARD DATE:  22 August 2013

		DOCKET NUMBER:  AR20130001368 


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 military records to allow him to transfer his education benefits to his children under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he was not properly processed from active Reserve status.  In fact, he was not aware that his retirement had been processed or approved until after his retirement date.  He found his retirement orders on-line by accident in November 2012.  He was never given any notice of retirement, never issued a DD Form 214 (Certificate of Release or Discharge from Active Duty), or offered any transition services. 

3.  The applicant provides a copy of his orders assigning him to the Retired Reserve effective 28 June 2010.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired U.S. Army Reserve (USAR) major (MAJ).

2.  His records show that he last served on active duty from 11 August 2007 to 13 July 2008, when he was released from active duty due to completion of required service.

3.  Headquarters, Civil Affairs and Psyop Command, Fort Bragg, North Carolina, Orders 08-295-00015, dated 21 October 2008, show the applicant was reassigned within his troop program unit (TPU) effective 14 July 2008.
4.  Headquarters, Civil Affairs and Psyop Command, Fort Bragg, North Carolina, Orders 10-179-00001, 28 June 2010,  show he was reassigned from his TPU to the Retired Reserve effective 28 June 2010.

5.  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.  

6.  Public Law 110-252 limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve of the U.S. Army on or after 1 August 2009.

7.  DOD, Department of Veterans Affairs (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.

8.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) establishes responsibility and provides procedures for the appointment of commissioned and warrant officers in the Reserve Component of the Army.  This regulation states in part that the Selected Reserve is defined as that part of each Reserve component that consists of units and individuals who participate actively in paid training periods and serve on paid active duty for training each year, such as USAR troop program units.

DISCUSSION AND CONCLUSIONS:

1.  The applicant last served on active duty from 11 August 2007 to 13 July 2008 and the evidence shows he remained in a TPU unit until he was assigned to the Retired Reserve effective 28 June 2010.  He was in a TPU when the TEB provisions were implemented in July/August 2009.  It appears he should have discovered he was going to be transferred to the Retired Reserve when he stopped drilling with his TPU.

2.  He was fully eligible to transfer his educational benefits under the TEB prior to his transfer to the Retired Reserve, but did not do so.  The program was implemented 1 August 2009.  

3.  The Department of Defense (DOD), VA, and the Army conducted a massive public information campaign 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 June 2010 over 10 months after the program was implemented.

4.  The applicant's service and his sincerity are not in question; however, since the applicant was transferred to the Retired Reserve on 28 June 2010, he had sufficient time to submit his TEB request.  There is no evidence he exercised due diligence; therefore, he is ineligible for the requested relief.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  _______ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that relief should be granted.  One Board member knew from personal experience with the applicant’s major command that they gave service members no retirement information or briefings regarding any aspects of retirement.  The applicant met the requirement of being in the Selected Reserve when the program became effective, in August 2009.  It would be equitable to show he transferred his education benefits in a timely manner.

2.  Therefore, 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 he filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his family members prior to his transfer to the Retired Reserve, 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.








SAMR-RB									5 September 2013


MEMORANDUM FOR Commander, US Army Human Resources Command, 1600 Spearhead Division Avenue, Department 100, Fort Knox, KY  40122-5100

SUBJECT:  Army Board for Correction of Military Records (ABCMR) Record of Proceedings for 


1.  Reference the attached ABCMR Record of Proceedings, dated 22 August 2013, in which the Board, by a unanimous vote, recommended to grant the applicant relief by correcting his records to show he transferred his education benefits to his children under the Transfer of Education Benefits (TEB) provision of the Post 9/11 GI Bill in a timely manner. 

2.  The Board members based their recommendation on their belief that the applicant's major command gave Soldiers no retirement information or briefings regarding any aspects of retirement.  As the applicant met the requirement of being in the Selected Reserve when the program became effective, in August 2009, the Board members determined it would be equitable to correct his records as requested.

3.  After reviewing the findings, conclusions, staff recommendation and reason for dissent from the staff's recommendation, my decision is to reject the Board's recommendation for relief.  

4.  Notwithstanding the dissent of the Board, the applicant did not retire until 28 June 2010, nearly a year after the program became effective.  The Departments of Defense and Veterans Affairs and the Army conducted a massive public information campaign that generated major communications through military, public, and social media venues.  The information was published well in advance with an emphasis on the criteria for transferring GI Bill benefits.  While there may have been some confusion during the early stages after the implementation, the applicant did not retire until June 2010, over 10 months after the program was implemented.  

5.  This information would have been available to the applicant.  He attended inactive duty training on a regular basis during that period.  Even if he had not been specifically briefed on the program, it is not credible to believe that he would not have learned at least the outlines of the program from such sources as fellow Soldiers, the Army Times, or Army Knowledge Online.  He may not have discovered his retirement orders until November 2012, but as it appears he stopped attending drills in June 2010 he should have realized that his time in the Selected Reserve would soon end.  As a field grade 




SAMR-RB
SUBJECT:  Army Board for Correction of Military Records Record of Proceedings for 


officer, he had a responsibility to keep himself informed on programs that would affect his retirement benefits. 

6.  Therefore, I respectfully disagree with the ABCMR’s recommendation, and the applicant’s request for relief is denied in full.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl						     W.A. (Bud) Shatzer
						     Acting Deputy Assistant Secretary
						       (Army Review Boards)

CF: 
(X) AMHRR