IN THE CASE OF:	  

		BOARD DATE:	    10 September 2013

		DOCKET NUMBER:  AR20130002364 


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 reconsideration of his earlier request to transfer education benefits to his son under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  He states both the Army and the National Guard Bureau state in their memoranda that Soldiers leaving the Army in the first 90 days were not fully aware of the program.  His effective date of retirement was 31 December 2009, that included transition leave.  The applicant states that by the summer of 2009 he had accrued over 90 days of unused leave.  He out-processed from the military in late September 2009.

3.  The applicant states his pre-retirement benefit briefings and medical screening were completed months prior to his out-processing in late September 2009.  The applicant states these briefings occurred well before the new directives were implemented.  By October 2009, he was finished with the Army and was working at his new civilian job.  His only affiliation with the Army was for his accrued terminal leave that expired 31 December 2009.

4.  He provides a copy of a Pre-Retirement Planning Checklist.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR120120006838 on 18 October 2012.

2.  The applicant's contentions are new arguments that will be considered by the Board.  In addition, the evidence provided is new evidence that warrants consideration by the Board.

3.  Orders 230-010, issued by Department of Military and Veterans Affairs, Pennsylvania Army National Guard, dated 18 August 2009, show the applicant was scheduled for release from active duty and retirement effective 31 December 2009, and placement on the retired list on 1 January 2010.

4.  The Defense Finance and Accounting Service (DFAS) confirmed the applicant was on transition leave from 14 October 2009 through 31 December 2009.

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 of 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 education benefits to family members.  A service member may execute transfer of 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 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, and 

	b.  Service members must also have served on active duty in the Regular Army; 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.

7.  The program guidance stipulates 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; or

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his record be corrected to show he applied for and the Army approved transferring his benefits under the Post-9/11 GI Bill to his dependents prior to his retirement from active duty on 31 December 2009 has been carefully considered and found to have merit.

2.  It is acknowledged that based on public law his previous request was denied. However, his argument that he was on transition leave is valid, as confirmed by 
DFAS.  He went on transition leave within 90 days after the implementation date of the program.  The TEB program was new at the time and it appears that there was insufficient guidance on how to properly transfer his benefits under the Post-9/11 GI Bill to his dependents available at the time.

3.  In view of the fact that guidance on transfer was not fully disseminated prior to his transition leave, it would serve the interest of equity and fairness to correct his record to reflect he applied to transfer his education benefits under the Post-9/11 GI Bill Transferability Program and the Army approved his request prior to his retirement.

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 amendment of the ABCMR’s decision in Docket Number AR20120006838, dated 18 October 2012.  As a result, the Board recommends that the State Army National Guard records and the 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 dependents prior to his 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)                                         AR20130002364



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ABCMR Record of Proceedings (cont)                                         AR20130002364



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