DEPARTMENT OF THE NAVY
eT) BOARD FOR CORRECTION OF NAVAL RECORDS
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a 2 NAVY ANNEX
7 WASHINGTON DC 20370-5100

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Docket No. 10088-09
4 March 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 14 Oct 09
Excerpts from Subject’s naval record and papers
related to this application

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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 establish eligibility to transfer Post-
9/11 GI Bill benefits to his dependents.

2. The Board, consisting of Messrs. George, Pfeiffer, and
4salman, 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 bill provides
Docket No. 10088-09

financial support for education and housing for service members
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. General
descriptions of the essential components of the new law were
widely available beginning in summer 2008 but specific
implementing guidance was not published until summer 2009.

ec. In October 2008, Petitioner submitted a retirement
request seeking to be released from active duty/transferred to
the retired list effective 31 July/1 August 2009. His request
was approved and, in December 2008, he received retirement
orders that conformed with his request. Petitioner began
terminal leave on 27 May 2009.

d. 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,
“active duty sailors that separate, retire, transfer to the
Fleet Reserve or who are discharged prior to 1 August 2009 are
not eligible to elect transferability.” See enclosures (2) and

(3) i

e. On 17 July 2009 Petitioner requested authorization to
transfer educational benefits to his dependents electronically
via the Department of Defense Transferability of Educational
Benefits (TEB}) website. Note, because Petitioner was scheduled
to be released from active duty on 31 July 2009, he did not meet
the eligibility criteria to transfer educational benefits. As
stated above, members who are discharged prior to 1 August 2009
are not eligible to elect transferability.

£. On or about 17 July 2009, Petitioner’s electronic
request to transfer educational benefits to his dependents was,
erroneously, approved. The error was made by service
representatives of BUPERS 26 and COMNAVRESFORCOM who were
struggling to process a backlog of approximately 1700 TEB
applications beginning at their first opportunity on 6 July
2009. Subsequent review has revealed that the same error was
made in seven other instances.

g. Upon learning that Petitioner’s TEB application had
been erroneously approved the Bureau of Naval Personnel (BUPERS-
262G now PERS-314) took steps to notify Petitioner of the error.
On 4 September 2009 representatives from BUPERS-262G advised
Petitioner by phone that under the law and regulations
implementing the Post 9/11 GI Bill, he was not eligible to
Docket No. 10088-09

transfer benefits to his dependents because he was not on active
duty on 1 August 2009. Petitioner was also advised by letter
dated 4 September 2009 that the erroneous approval had been
rescinded.

h. On 23 September 2009, Petitioner submitted the instant
application to this Board. He seeks to have the record changed
to show that (1) he was released from active duty after 1 August
2009 in order to establish eligibility to transfer Post-9/11 GI
Bill benefits, and (2) that his request to transfer the benefits
to his dependents be approved. He argues, essentially, as
follows. The specific transfer eligibility criteria were not
published until after he began terminal leave. Hence, he “did
not see” enclosures (2) and (3) until September 2009.
Additionally, once he received the “erroneous” approval to
transfer benefits, he relied on the approval to enroll his son
in college. He served in excess of 20 years on active duty and
denial of the educational benefits for his dependents is
creating a “tremendous financial hardship.”

i. In correspondence attached as enclosure (4), the Bureau
of Naval Personnel (BUPERS 262-G) has recommended the request be
denied. Although a regrettable error was made in originally
approving Petitioner’s application to transfer Post-9/11 GI Bill
benefits to his dependents, Petitioner is, in fact, not eligible
under the law. To transfer benefits, a member must have been
in the Armed Forces on 1 August 2009, the effective date of the
Post-9/11 GI Bill. Petitioner’s last day of active duty was 31
July 2009, and as such he was never eligible to transfer his
benefits to his dependents. Moreover, upon learning that
Petitioner’s TEB application had been erroneously approved, the
Bureau of Naval Personnel (BUPERS-262G) took prompt steps to
notify Petitioner of the error. General descriptions of the
eligibility criteria for the Post-9/11 GI Bill were widely
available beginning in summer 2008. Petitioner bears some
responsibility to know the eligibility criteria for the new law
as applied to him. Additionally, although no effort should be
spared to avoid providing members of the naval service with
erroneous information about their eligibility for benefits, it
is well settled that any such erroneous information given does
not serve as a basis for the receipt of benefits in excess of
those that are provided for by statute or regulation.

CONCLUSION :

Upon review and consideration of all the evidence of record, on
balance, the Board concludes that Petitioner’s request warrants
Docket No. 10088-09

favorable action. The Board carefully weighed the observations
made in enclosure (4) regarding Petitioner’s responsibility to.
have known that he was not eligible to transfer benefits.
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 terminal leave. Most importantly, Petitioner wag
erroneously told that his request to transfer benefits was
approved and he has demonstrated at least partial reliance on
that erroneous approval. Therefore, even though the record is
clear that Petitioner did not meet the criteria to transfer
benefits, under these special circumstances a measure of relief
is warranted.

RECOMMENDATION :

That Petitioner’s naval record be corrected, where appropriate,
to show that:

a. He was released from active duty/transferred to the
retired list effective 31 August/1 September 2009, vice 31
July/1i August 2009. Petitioner will be entitled to all
corresponding pay and allowances (to be offset by his retired
pay, and if applicable, civilian wages). No waivers of the
offset will be granted. Note: this change will make Petitioner
eligible to transfer Post 9/11 GI Bill educational benefits
under the law.

b. Prior to 31 August 2009, Petitioner made a timely
request to transfer Post 9-11 GI Bill benefits to his
dependents. The request was received and approved prior to
Petitioner’s release from active duty.

c. Upon completion f the above changes, COMNAVPERSCOM
(PERS-314) will execute an approved Transferability of
Educational Benefits (TEB) application reflecting the transfer
information and options previously elected by Petitioner.
Docket No. 10088-09

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
foregoing is a true and complete record of the Board’s

proceedings in the above entitled matter.
ROBERT D. ZSALMAN WILLIAM J. HESS IIT
Recorder Acting Recorder

5, The foregoing action of the Board is submitted for your
review and action.

 

Reviewed and Approved

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Assistant General Counsel
Mannower and Reserve Affairs) -