DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

MEH
Docket No. 13339-09
26 Jul 10

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
Enel: (1) DD Form 149 w/attachments
(2) NAVADMIN 187/09 of 26 June 2009
(3) NAVADMIN 203/09 of 11 July 2009
(4) NPC memo 1780 PERS-314B of 23 Apr 10
(5) Subject‘s naval record

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 26 July 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
financial support for education and housing for service members
with at least 90 days of service on or after 11 September 2001.
Docket No. 13339-09

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. 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).

ad. In July 2009, pursuant to Petitioner’s request,
Petitioner received retirement orders with an effective date of
1 August 2009. Petitioner’s last day of active duty was 31 July
2009, and he was transferred to the retired list effective 1
August 2009.

e. On or about 13 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 13 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
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 was also
advised by phone on 3 September 2009.
Docket No. 13339-09

h. On 23 December 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
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)

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Docket No. 13339-09

erroneously told that his request to transfer benefits was
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/1l 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 g/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 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.

4. Pursuant to Section 6(¢) 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\j III
Recorder Acting Recorder
Docket No. 13339-09

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

W. DEAN See
Executive Director

Reviewed and Approved (2A EArt. B/ ise

ROBERT L. WOODS

Assistant General Counsel
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Rm 40548
Washington, DC 20350-1000