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

 

MEH
Docket No. 11738-09
15 April 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-314 of 9 Feb 10
Excerpts from Subject’s naval record and papers
related to this application

in Bb Ww Nh
ee ee

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. Pfeiffer, Zsalman and
George, reviewed Petitioner’s allegations of error and
injustice on 12 April 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.
Docket No. 11738-09

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 financial support for education and housing
for service members with at least 90 days of service on or
after 11 September 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,

c. In approximately December 2008, Petitioner
submitted a retirement request seeking to transferred to
the retired list effective 1 August 2009. His request was
approved and, in February 2009, he received retirement
orders that conformed with his request. Petitioner began
terminal leave on 15 June 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).

e. On or about 30 July 2009 Petitioner requested
authorization to transfer educational benefits to hig
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 5 August 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
2003, Subsequent review has revealed that the same error
was made in seven other instances.
Docket No. 11738-09

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 mailed Petitioner a letter
advising him that under the law and regulations
implementing the Post 9/11 GI Bill, he was not eligible to
transfer benefits to his dependents because he was not on
active duty on 1 August 2009. Petitioner received the

letter on 9 September 2009. Petitioner was also advised by
phone on 11 September 2009.

h. On 5 November 2009, the instant application was
received by this Board. In it, Petitioner 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
transfer eligibility criteria were not clear. If he had
known that he would not be eligible to transfer benefits
based on his approved retirement date, he would have
requested to delay his retirement until eligible.

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
Docket No. 11738-0909

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 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 his transition to retired status. Most
importantly, Petitioner was (initially) erroneously told
that his request to transfer benefits wag approved.
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 and transferred
to the retired list effective 31 August/1 September 2009,
vice 31 July/1 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.

¢. Upon completion of 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. 11738-09

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 ig a true and complete record of the
Board's proceedings in the above entitled matter.

Viblean Ape

ROBERT D. ZSALMAN WILLIAM J. HESS, III
Recorder Acting Recorder
Ba The foregoing action of the Board is submitted for

your review and action.

  

Qed

Executive Di

  

<
es

Reviewed and Approved

Wbod sf fd

Assistant General Counsel
(Manpower and Reserve Affairs)