IN THE CASE OF: BOARD DATE: 22 February 2012 DOCKET NUMBER: AR20110016135 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, in effect, correction of his records to show he applied to transfer his education benefits to his dependent children under the Post-9/11 GI Bill Transferability Program. 2. He states: * by extending his initial 2009 retirement date to August 2009, he became eligible to transfer his Post-9/11 GI Bill to his dependent children * during his retirement processing, the Department of Veteran Affairs (VA) told him he was authorized 100 percent of his benefits for 36 months * he followed up with his local education office and transferred his benefits * during his July 2011 recertification, the VA found no record of his transfer * he is requesting a correction letter be sent to the VA Education office reinstating his transfer of benefits to his dependents. 3. He submitted: * his DD Form 214 (Certificate of Release or Discharge from Active Army * a three page self authored statement * three orders * two Certificates of Eligibility CONSIDERATION OF EVIDENCE: 1. The applicant submitted: a. Orders Number 079---51, U.S. Army Transportation Center and School, Military Personnel Division, Fort Eustis, VA, dated 19 March 2008, which show he had an approved retirement date of 1 December 2008. b. Orders 198-0052, U.S. Army Transportation Center and School, Military Personnel Division, Fort Eustis, VA, dated 16 July 2008, which amended his scheduled dated of separation to 31 August 2009. c. Orders 148-0050, U.S. Army Garrison, Fort Eustis, Military Personnel Division, Fort Eustis, VA, dated 28 May 2009, which amended his scheduled dated of separation to 31 August 2009. d. a Certificate of Eligibility from the VA, Regional Processing Office, Buffalo, NY, dated 8 July 2009, which states had received his application for the Post 9/11 GI Bill and had 36 months and 0 days of full time benefits. He was also entitled to receive 100% of the benefits payable under the Post 9/11 GI Bill program for training. e. a Certificate of Eligibility from the VA, Regional Processing Office, Buffalo, NY, dated 25 July 2011, which states had received his application for the Post 9/11 GI Bill and had 36 months and 0 days of full time benefits. He was also entitled to receive 100% of the benefits payable under the Post 9/11 GI Bill program for training. 2. The applicant's DD Form 214 shows he retired in the rank of lieutenant colonel/O-5 on 31 August 2009. It further shows he completed 22 years, 7 months, and 26 days of active military service. 3. During the processing of this case, an advisory opinion was obtained from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who recommended administrative relief based on the details below because the applicant left the service within 90 days of the implementation of the program. a. He was honorably retired on 31 August 2009 which was within 90 days after the implementation of the Post-9/11 GI Bill. He had more than 20 years of service prior to retirement; therefore, he would not have incurred an additional obligation. b. The transfer of education benefits (TEB) online database shows he had four eligible dependants: his spouse and three children enrolled in DEERS. As a result he was eligible to transfer his benefits to this children or his spouse (if he completed the request before leaving the military). c. The TEB website shows no action was taken by the applicant to transfer any benefits. However, he claims he did not complete the requirements in the TEB online database because he was not aware of the requirement to transfer his benefits prior to leaving the military. 4. The advisory opinion further stated that although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirements to transfer their benefits prior to leaving the military. 5. On 1 November 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. 6. The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law 110-252, House of Representatives 2642. In July of 2008, Congress passed a law for the Post-9/11 GI Bill, which went into effect on 1 August 2009. 7. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. The General eligibility criteria are as follows: a. Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active service. b. Service members also must have served on active duty in the Regular Army; as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302 and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service. 8. The program guidance stipulates if a service member becomes retirement eligible during the period beginning on 1 August 2009 through 1 August 2013, and agrees to serve the additional period as specified below, the service member is entitled to transfer benefits to his dependents. A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732: a. service members eligible for retirement on 1 August 2009 - no additional service required; b. service members who have an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service required; c. service members eligible for retirement after 1 August 2009, and before 1 August 2010 - 1 year of additional service is required; d. service members eligible for retirement on or after 1 August 2010, and before 1 August 2011 - 2 years of additional service is required; e. service members eligible for retirement on or after 1 August 2011, and before 1 August 2012 - 3 years of additional service is required; and f. active duty service members who separate, retire, transfer to the Reserve or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his records should be corrected to show he applied for and was approved to transfer his Post-9/11 GI Bill benefits to his eligible dependant children prior to retirement on 31 August 2009, based on a lack of information being available, has been carefully considered and found to have merit. 2. The available evidence shows he was fully eligible for transfer of his education benefits to his dependents under the Post-9/11 GI Bill, but he contends he was not aware he needed to be on active duty to transfer the benefits to his dependents. 3. The advisory opinion recommends administrative relief because he left the service within 90 days of the implementation of the program. Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirements to transfer benefits prior to leaving the military. The applicant retired on 31 August 2009, which was within 90 days of implementation of the program. 4. In view of the above and in the interest of equity, his request for relief should be granted. BOARD VOTE: ___X___ ___X____ ___X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer his Post-9/11 GI Bill benefits to his dependent prior to his retirement, provided all other program eligibility criteria are met. _______ _ 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) AR20110016135 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1