DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5400
MEH
Docket No. 9522-09
15 Feb 2010
From: Chairman, Board for Correction of Naval Records
To: secretary of the Navy
Subj: REVIEW OF NAVAL RECORD ICO
Ref: (a) Title 10 U.S.c. 1552
Encl: DD Form 149 w/attachments
NAVADMIN 187/09 of 26 June 2009
NAVADMIN 203-09 of 11 July 2009
BUPERS memo 1780 BUPERS-262G of 27 Oct 2009
Subject's naval record
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1. Pursuant to the provisions of reference (a) Subject,
hereinafter referred to as Petitioner, filed enclosure (1) with
this Board requesting, in effect, that the applicable naval
record be corrected to show that she transferred Post-9/11 GI
Bill benefits to her dependents prior to her retirement on
1 September 2009.
2. The Board, consisting of Messrs. George, Pfeiffer, and
Zsalman, reviewed Petitioner's allegations of error and
injustice on 1 February 2010 and, pursuant to its regulations,
determined that the corrective action indicated below should be
taken on the available evidence of record. Documentary material
considered by the Board consisted of the enclosures, naval
records, and applicable statutes, regulations and policies.
3. The Board, having reviewed all the facts of record
pertaining to Petitioner's allegations of error and injustice,
finds as follows:
a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.
b. The Post-9/11 Veterans Education Assistance Act (Post
9-11 GI Bill, Public Law 110-252) was signed into law on 30 June
2008 and became effective on 1 August 2009. The bili provides
financial support for education and housing for service members
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Docket No. 9522-09
with at least 90 days of service on or after September 11, 2001.
The act also includes a provision for qualifying service members
to transfer educational benefits to dependents.
c. The Navy’s guidance implementing the Post 9-11 GI Bill
was published by NAVADMIN 187/09, released on 26 June 2009, and
NAVADMIN 203-09, released 11 July 2009. Under the guidance, an
election to transfer benefits to dependents must be made prior
to retirement or separation from active duty. See enclosures
(2) and (3).
d. Petitioner was scheduled to retire on 1 September 2009.
In anticipation of this date, she began terminal leave on 15
June 2009,
€. Petitioner met the eligibility requirements for
transferring her Post-9/11 GI Bill benefits to her dependents.
She was still on active duty during the release of both
aforementioned NAVADMINs.
£. Although eligible to do so, Petitioner did not take any
steps to transfer her Post-9/11 GI Bill benefits to her
dependents prior to her approved retirement date.
g. Petitioner was placed on the retired list effective
1 September 2009.
h. On 4 September 2009, Petitioner filed the instant
application seeking to change the record to show that, prior to
her transfer to the retired list, she properly requested to
transfer Post-9/11 GI Bill benefits to her dependents.
Petitioner argues, in effect, that the procedures required to
transfer the benefits were not quite settled when she began her
terminal leave and she was not aware of the requirement to apply
for transfer of the GI Bill benefits before her retirement.
1. In correspondence attached as enclosure (4), the Bureau
of Naval Personnel (PERS 262-G) has recommended the request be
denied. In PERS 262-G’s view, although Petitioner was on
terminal leave when NAVADMINs 187-09 and 203-09 were published,
that does not relieve her of her responsibility to know of
government programs that affect her. Additionally, although the
Navy’s specific implementing guidance was not published until
summer 2009, the general features of the Post-9/11 GI Bill had
been widely publicized, both before and after it was signed into
law in June 2008. Thus, it was incumbent upon Petitioner to
Docket No. 9522-09
stay informed of the latest policy updates especially as she
desired to transfer her benefits to her dependents.
CONCLUSION :
Upon review and consideration of all the evidence of record,
notwithstanding the comments contained in enclosure (4), the
Board concludes that Petitioner’s request warrants favorable
action. The Board carefully weighed the observations made in
enclosure (4) regarding Petitioner's responsibility to keep
herself informed of the rules that govern federal programs as
they affect her. However, the Board found that the following
factors militated in favor of relief: The Post 9-11 GI Bill
program is “new” and, as with many new programs, some
implementation difficulties are to be expected. Specific
guidance about the program was not available until summer 2009.
By that time, Petitioner had already begun the transition to
retired status, including terminal leave. Petitioner was
otherwise eligible to transfer benefits, but, failed to properly
transfer benefits prior to retirement as required by the
implementing guidance. Thereafter, Petitioner made a timely
request to this Board seeking to rectify her failure. The Board
concluded that Petitioner sufficiently demonstrated a desire and
intent to transfer benefits prior to her retirement. And even
though the record is clear that she failed to take the steps
necessary to properly transfer the benefits, that failure should
be excused because of the special circumstances described above.
RECOMMENDATION:
That Petitioner’s naval record be corrected, where appropriate,
to show that:
a. Prior to her 1 September 2009 retirement from the armed
forces she successfully completed the online election request to
transfer her unused Post-9/11 GI Bill benefits to her
dependents.
b. Petitioner should contact the Bureau of Naval Personnel
(PERS 262-G) to execute the documents necessary to complete the
transfer.
4, Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Regulations, Section 723.6(¢c)} it is certified that quorum was
present at the Board’s review and deliberations, and that the
Docket No. 9522-03
foregoing is a true and complete record of the Board's
proceedings in the above entitled matter.
ROBERT D. ZSALMAN WILLIAM J. HESS, III
Recorder Acting Recorder
5. The foregoing action of the Board is submitted for your
review and action.
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