IN THE CASE OF:	  

		BOARD DATE:	    14 November 2013

		DOCKET NUMBER:  AR20130004885 


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 request for correction of his records to show he elected to transfer his Post-9/11 GI Bill educational benefits to his children.

2.  The applicant restates his original argument, as follows:

	a.  He was denied the opportunity to transfer his Post-9/11 GI Bill benefits to his children.  He did not receive complete and accurate information necessary to transfer his educational benefits prior to his retirement.

	b.  His retirement date was 1 April 2010.  He went to the Department of Veterans Affairs and Department of Defense (DOD) Manpower Data Center (DMDC) websites on 30 December 2010 to transfer his benefits to his children and he was denied because he was supposed to have made the transfer decision while still serving on active duty. 

	c.  This information was not covered in any retirement briefings he attended, nor was he given an information paper that explained the program or requirement to transfer benefits prior to leaving active duty.  In fact, he was advised that he could transfer the benefits post-retirement at a future date when his dependents were ready to utilize the benefits.  Had he known about the need to make a transfer decision while still serving on active duty he would have done so.

	d.  He has three children attending college over the next 9 years and using these benefits was certainly in his retirement and financial planning.

	e.  The Army's General Officer Management Office (GOMO) that provides out-processing guidance for general officers was aware he had three children under the age of 18.

	f.  His clearance papers show he was not scheduled to go to the Education Center to out-process and, therefore, he didn't go.  When he asked about GI Bill benefits at his final out-processing appointment, the branch chief at Fort Myer told him that he could use the benefits or transfer them.  No mention was made of the requirement to transfer the benefits while still serving on active duty; he was told to apply for the benefits when he was ready to use them.  He received nothing in writing at the final out-processing appointment.

	g.  The GOMO transition course materials he received in January 2010 did not include a briefing or information paper on the Post-9/11 GI Bill, nor was the information included in the voluntary retirement application.

	h.  In December 2010 when his oldest child's college application process was underway, he attempted to transfer his Post-9/11 GI Bill benefits using the DOD website.  However, his request was denied.

	i.  He has pursued the matter with GOMO through email messages and was advised that nothing could be done.

	j.  He adds the following new information:

		(1)  He initially planned to retire in November 2009 and wanted to confirm his eligibility for the Post-9/11 GI Bill; his retirement date was later changed to April 2010.  In July 2009, he conducted research and found a DOD Information Paper on the Post-9/11 GI Bill, dated 23 June 2009.  He states, "The paper contained NO wording of the requirement to transfer the benefit while still on active duty."  He relied on information in the information paper as well as the misinformation he received during his pre-retirement briefing.

		(2)  GOMO did not make the necessary adjustments to its pre-retirement counseling upon implementation of the Post-9/11 GI Bill Transfer of Education Benefits (TEB) option on 1 August 2009.  It was added to the retirement briefing in June 2010 after his retirement date when GOMO learned of his situation.  He states the email message and memorandum from two GOMO staff officers confirm that the retirement briefing and retirement application now include information to make general officers aware of the requirement to transfer benefits prior to retirement.

		(a)  He states the Chief, GOMO, agrees that his request has merit.

		(b)  He would expect all general officers who retired from August 2009 forward to be personally contacted about the GI Bill transferability option.

		(3)  He did not have individual pre-separation counseling on the TEB requirements as required by DOD policy and GOMO did not provide information regarding the benefits.  In addition, he contacted Education Services at Fort Myer in February 2013 and officials confirmed that there is no record of him being briefed by the Army Education Center.  He states he relied on false information from a reliable source, the Chief of the Fort Myer Transition Center, and this resulted in denial of the opportunity to transfer his benefits.

		(4)  He concludes by stating he meets all the eligibility criteria to transfer his Post-9/11 GI Bill benefits to his spouse and/or any of his three children.  He did not waive his right to make a TEB election and he was denied the right to transfer his benefits.  This error should be corrected by granting him full relief.  If full relief is not granted, then he requests a formal hearing.

3.  The applicant provides copies of:

* Directive-Type Memorandum (DTM) 09-003:  Post-9/11 GI Bill
* DA Form 137-2 (Installation Clearance Record)
* 2009 GOMO Transition Course and Retirement Information Booklet
* voluntary retirement application
* 2013 GOMO Retirement Briefing
* current GOMO voluntary retirement application (template)
* email from a GOMO personnel officer
* memorandum from the Chief, GOMO
* memorandum from the Chief, Transition Services Branch, Joint Base Myer
* information paper titled Post-9/11 GI Bill Transferability

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 AR20110020812 on 16 February 2012.

2.  The applicant retired from the Army in the rank/grade of lieutenant general/
O-9 on 31 March 2010 and was placed on the Retired List on 1 April 2010.

3.  In support of his request for reconsideration the applicant provides the following new documents.

	a.  DTM 09-003, Post-9/11 GI Bill (with attachments), dated 22 June 2009, established policy, in part, for authorizing the TEB in accordance with Title 38, U.S. Code, section 3319.  The attachments outline responsibilities, procedures, eligibility, reporting requirements, and a glossary.

		(1)  It shows the Post-9/11 GI Bill is effective 1 August 2009 and DOD policy provides that the TEB will be used by the Military Services to promote recruitment and retention.

		(2)  It also shows:

		(a)  The Secretaries of the Military Departments shall 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 and document accordingly.

		(b)  For purposes of "Transferability of Unused Education Benefits to Family Members," eligible individuals include 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, is eligible for the Post-9/11 GI Bill.

		(c)  The "Time for Transfer, Revocation, and Modification – Time for Transfer" section provides that an individual approved to transfer entitlement to educational assistance may transfer such entitlement to the individual's family member only while serving as a member of the Armed Forces.

	b.  A GOMO Transition Course and Retirement Information Booklet prepared by GOMO on 11 January 2010 makes no mention of the Post-9/11 GI Bill in the documents provided.

	c.  The applicant's voluntary retirement application, dated 8 May 2009, does not include information pertaining to the Post-9/11 GI Bill.

	d.  The GOMO Retirement Briefing, undated, includes a Post-9/11 GI Bill slide with the note, "Transfer of the Post-911 GI Bill entitlement MUST be made prior to retiring from the Army.  Changes cannot be made after retirement."

	e.  A general officer voluntary retirement application template, dated 9 January 2012, shows information pertaining to the Post-9/11 GI Bill is contained in paragraph 9 and states the transfer of unused educational benefits to family members must be completed/approved prior to the retirement date.

	f.  An email message to the applicant, dated 5 February 2013, shows the GOMO Personnel Management Officer confirmed that information pertaining to the TEB option under the Post-9/11 GI Bill was not included in the GOMO retirement briefing he received.  He notes that it has since been added to the retirement briefing and retirement application template.

	g.  A memorandum to the applicant, dated 13 February 2013, shows the GOMO Chief confirmed information pertaining to the TEB option under the 
Post-9/11 GI Bill was not included in the GOMO retirement briefing or retirement application and the applicant was not individually informed or counseled regarding the benefits.  He notes that it has since been added to the retirement briefing and retirement application template.

	h.  A memorandum from the Joint Base Myer Transition Services Branch Chief, dated 13 February 2013, states the applicant was not required to go to the Education Center to out-process.  He also states the applicant was not provided complete information on the requirements or correct guidance on the TEB option.

	i.  A Post-9/11 GI Bill Transferability information paper (source unknown), dated 23 June 2009, shows eligible individuals include any member of the Armed Forces (active duty or Selected Reserve, officer or enlisted) on or after 1 August 2009 and who meet specified service criteria for the Post-9/11 GI Bill.

4.  On 22 June 2009, DOD established criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible member 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 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.

	d.  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.

5.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration of his request for correction of his records to show he elected to transfer his Post-9/11 GI Bill educational benefits to his children because he was provided information that was misleading and incomplete concerning the TEB option and he was not individually counseled as required by DOD policy.

2.  The evidence of record shows the applicant was fully eligible to transfer his educational benefits under the TEB prior to retirement, but he did not do so.

3.  DTM 09-003, dated 22 June 2009, requires that active duty participants be provided individual pre-separation counseling on the Post-9/11 GII Bill benefits.  It also shows an individual approved to transfer entitlement to educational assistance may transfer such entitlement to the individual's family member only while serving as a member of the Armed Forces.

4.  The applicant acknowledged he became aware of the Post-9/11 GI Bill Information Paper in July 2009.  The information paper shows that eligible individuals include members of the Armed Forces, including active duty or Selected Reserve officer or enlisted Soldiers.

	a.  The evidence of record shows the applicant did not receive information concerning the TEB option during his GOMO retirement processing.  However, he was provided information concerning the Post-9/11 GI Bill during his out-processing at the Transition Services Branch, Joint Base Myer.

	b.  While the applicant may have been provided incomplete information on the Post-9/11 GI Bill, he was counseled on the program.  Given the applicant's rank, it is reasonable to conclude that the Transition Services Branch Chief conducted this counseling on an individual basis.  More importantly, the applicant acknowledges he was aware of the information paper that shows the TEB was available to members of the Armed Forces serving on active duty.  Thus, it is reasonable to conclude that he understood the stated active duty eligibility requirement and that the policy did not extend to individuals after they retired from active duty.

	c.  There is insufficient evidence to show the applicant was provided information that he was eligible to transfer his benefits after he retired and no longer a member of the Armed Forces on active duty.

5.  The applicant retired from active duty on 1 April 2010 and he did not attempt to access the DOD DMDC website until 30 December 2010.  Thus, the applicant retired from the Regular Army without transferring his educational benefits.  By law he is no longer eligible to transfer his benefits.

6.  In view of all of the foregoing evidence, there is no basis for granting the applicant's requested relief.

7.  The applicant's request for a personal appearance hearing in the event relief is denied was carefully considered.  However, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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 to amend the decision of the ABCMR set forth in Docket Number AR20110020812, dated 16 February 2012.




      _______ _ 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)                                         AR20130004885



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004885



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1