IN THE CASE OF:	  

		BOARD DATE:	    31 October 2013

		DOCKET NUMBER:  AR20130005263 


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 approval for transfer of his Post-9/11 GI Bill benefits to his eligible family members.

2.  The applicant states:

	a.  During his outprocessing, he was not advised that he had to transfer the education benefits prior to separation;

	b.  He was reassigned to the Warrior Transition Unit (WTU) during his outprocessing and the unit did not have an education counselor available during that time frame;

	c.  He was not advised that he had a mandatory outprocessing at the education center;

	d.  He outprocessed the education center 6 months after his retirement;

	e.  He was afforded the opportunity to transfer his education benefits during outproccesing but he was not informed that he had to transfer the benefits prior to separation; 

	f.  He served his Nation diligently for 29 years and he feels that the oversight is inexcusable; and

	g.  His situation is not unique but it is a snapshot of the holes that Soldiers can fall into without careful briefings and proper staffing.  

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), outprocessing notes, and Education Center notes.

CONSIDERATION OF EVIDENCE:

1.  The applicant's Army Military Human Resource Record (AMHRR) shows the following:

	a.  On 21 May 2012, he completed a DD Form 2648 (Preseparation Counseling Checklist) in which he elected not to receive additional counseling pertaining to education benefits which included information related to Post-9/11 GI Bill education benefits.  

	b.  On 26 July 2012, he was placed on the Temporary Disability Retired List (TDRL) in the rank of chief warrant officer three.  He completed over 24 years of active duty service.  He had been on active duty in the U.S. Army Reserve Active Guard Reserve program since 21 May 2003.

2.  The applicant provided a memorandum and education center counseling notes from the Fort Knox Education Center, dated 21 February 2013.  This document shows that he received counseling on Chapter 33, and the Post 9/11 GI Bill, authorized by the National Defense Authorization Act of 2008.  The counseling notes indicated:

* he failed to come to the mandatory separation counseling 
* the Soldier and Family Assistance Center (SFAC) counselor slot was vacant between April 2012 until September 2012 and the Education Center Counselor only went to SFAC for 4 hours per week 
* the wounded veteran was discharged with a medical discharge but was not advised of his options for transferring the Post 9/11 benefits to his spouse

3.  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.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational 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.  

4.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  The applicant was retired effective 26 July 2012 and he was eligible to transfer benefits had he done so at the time of retirement.  He contends that he was not counseled prior to his discharge; however, the evidence of record shows he declined further counseling in regard to the Post 9/11 GI Bill education benefits on 21 May 2012.  In addition, a note from the Fort Knox Education Center confirms that he failed to attend mandatory training.

3.  He submits notes from the Fort Knox Education Center which state that the SFAC position was vacant during the period April through September 2012 and only operational 4 hours per week.  Further, these notes state that he did not receive the required education benefits counseling prior to his medical discharge.

4.  It is unclear how, if at all, the limited staffing of the SFAC precluded the applicant from receiving counseling in regards to his educational benefits.  However, the fact that he declined counseling indicates that he was afforded the opportunity prior to his discharge and he voluntarily declined such counseling.  Further, DOD and the Army conducted massive public campaigns that generated major communications on the transfer of education benefits under the Post-9/11 GI Bill through military, public, and social media venues.  He has not provided sufficient evidence which shows he was deprived of information broadly disseminated through the public campaigns. 

5.  The Army has generally granted relief to members who left the service within the first 90 days after implementation of the program on 1 August 2009.  In this case, he had been on active duty since May 2003 and he was not separated until 25 July 2012, almost 3 years after the implementation of the program.  As a result, equity relief in this case would not be appropriate.

6.  In view of the foregoing, there is no basis to grant the 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 that 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)                                         AR20130005263



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ABCMR Record of Proceedings (cont)                                         AR20130005263



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