BOARD DATE: 12 April 2011 DOCKET NUMBER: AR20100019161 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 of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to his dependents. 2. He states he was under the impression after talking to the veterans' education representatives and the Department of Veterans Affairs (VA) representatives that he could transfer his remaining educational benefits to his dependents under the Post 9/11 GI Bill as long as he met the initial criteria. However, the Fort Lee Education Officer informed him on several occasions from May 2009 to August 2009 that the guidance was unclear coming from VA on the procedures for transfer. He maintains he was told to delay his submission until further guidance was provided. He offers that during his final weeks before out-processing, the Fort Lee education assistance representative was still unsure about the process, but indicated she thought the process had to be completed prior to his retirement on 31 August 2009. He states he completed his on-line submission for TEB to his dependents on 1 September 2009 based on his belief and the information provided that as long as he was on active duty on 11 September 2001, he could transfer his benefits at a later date. He concludes the guidance for TEB was unclear and, therefore, the 24-hour late submission should not override/outweigh his 21 years of dedicated service. 3. The applicant provides the following: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Officer Record Brief * self-authored statement CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 9 September 1987. He entered active duty on 30 December 1987. He was credited with 21 years, 8 months, and 1 day of active service and he was honorably retired in the rank of lieutenant colonel on 31 August 2009. 2. An advisory opinion was obtained on 3 January 2011 in the processing of this case. An official in the Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, stated the applicant is not eligible to transfer benefits under the Post-9/11 GI Bill transferability program. Army and Department of Defense (DOD) policy require a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits. These policies are based on requirements established in law. The Army does not have the legal authority to grant an exception to policy that would allow those who retired or separated from the Army to transfer Post-9/11 GI Bill benefits. The official recommended disapproval of the applicant's request and stated: a. Army and DOD policy require a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits. b. Those policies are based on requirements established in law. Consequently, the Army does not have the legal authority to grant an exception to policy. c. This opinion is based on the legal authority outlined in section 3319(b) of Public Law 110-252. Specific Congressional action would be required to change or amend the current legislation in order to change the applicant's eligibility status. 3. The applicant was provided a copy of this advisory opinion and responded with a rebuttal on 3 February 2011. He reiterated the information provided in his application to the Board. Additionally, he acknowledged that he did not fully meet the timeline to complete the application submission process in conjunction with established policy and procedures. He offered that he did not meet the submission timeline due to reasons beyond his control and an overall lack of guidance, education, and awareness at the local level. He said the mitigating circumstances were unique and he did everything within his power and control to meet the submission timeline within the spirit and intent of the policy. He explained that he has two daughters who will be reaching college age in the near future and he strongly felt his 24-hour late submission should not deny him or them this significant entitlement. 4. On 22 June 2009, DOD guidance established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individual’s request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill, provided he or she: a. has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; b. has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute; c. is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013. A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service; and d. for those individuals who have an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service is required. 5. The policy further states the Secretaries of the Military Departments will: a. provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and b. maintain records for individuals who receive supplemental educational assistance under section 3316 of reference (a) and provide those records to the Defense Manpower Data Center and the VA. 6. 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. The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post 9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009. However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his records should be corrected to allow him an exception to policy to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his dependents. 2. The evidence of record shows he was fully eligible to transfer his education benefits under the TEB prior to his retirement on 31 August 2009, but did not do so. He contends his failure to transfer his benefits was based on wrong information provided to him by representatives from the VA and the education office. He also contends he was only 24 hours late in his submission of his on-line application. 3. He argues he was given the wrong information and the guidance for transferring his benefits was unclear. However, he himself stated the last guidance he received informed him he had to have completed the process prior to his retirement on 31 August 2009. Yet, he waited until after he retired, on 1 September 2009, to apply for TEB. A reasonably prudent individual would have taken action prior to 31 August 2009. 4. DOD, VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. A Soldier must meet two criteria to qualify to transfer benefits to an eligible dependent: (a) be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided Soldier does not have an adverse action flag) and (b) have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of request, unless retirement eligible. Since the applicant did not transfer his benefits before he retired on 31 August 2009, he is ineligible to transfer benefits. 5. Therefore, his argument that his request should be approved based on being provided wrong information, unclear guidance, and the fact that he was only 24 hours late in his on-line submission is not sufficient evidence to justify approval. The law requires a member to be in an active status at the time he/she requests the transfer. He was not in an active status at the time of his request. Therefore, he is not eligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his dependents. 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 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) AR20100019161 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100019161 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1