BOARD DATE: 22 March 2012 DOCKET NUMBER: AR20110019626 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 an exception to policy to transfer education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his family members. 2. The applicant states he was on transition leave during the implementation of the benefits. During his educational benefits briefing the full details of the program were not available to education counselors. He was led to believe that he could make a decision to transfer the benefits after retirement. He began outprocessing and transition leave in June 2009 and he retired on 30 September 2009. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 5 September 1989 and he held military occupational specialty 94W (Electronic Maintenance Chief). He served in a variety of stateside and/or overseas assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 2. He underwent a pre-separation briefing on 30 September 2008 wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) of his DD Form 2648 in anticipation of his upcoming retirement. Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc. 3. He signed out of his unit on transition leave on 16 June 2009. His leave was approved through 30 September 2009, his date of retirement. 4. On 30 September 2009, he was honorably retired and placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 October 2009. He was credited with 20 years and 26 days of creditable active service. 5. During the processing of this case, on 1 November 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1. The advisory official recommended approval of the applicant's request because the applicant left the military within 90 days of implementation of the program. This official also stated the individual must: a. Have been in an active duty status or in the Selected Reserve on or after 1 September 2009. The applicant retired on 30 September 2009. He would have been eligible to transfer the benefits before he retired. b. Have 6 years of eligible service to transfer the benefit to a spouse and 10 years to transfer the benefit to children. The applicant had over 20 years of service. c. Have eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System (DEERS). The applicant had three eligible family members (spouse and children) enrolled in DEERS but he did not complete the requirements because he states he was unaware of the requirements. d. Agree to complete any additional service obligation. If the applicant transferred his benefits prior to leaving military service, he would have incurred 1 year of additional service obligation because he had more than 19 but less than 20 years of service as of 1 August 2009. He also had an honorable discharge and no adverse action. e. Initially request the transfer through the Department of Defense (DOD) TEB online database. This database was operational on 29 June 2009. Once approved in the TEB database, the information is automatically relayed to the Department of Veterans Affairs (VA). The respective family members must then submit an application for VA benefits. Since the applicant states he was unaware of the program process, none of these steps were taken. 6. The advisory official states that individuals should not be granted relief based on unawareness of the law, program, rules, or procedures, unless they left the service during the implementation phase (first 90 days of the program). The applicant's last active duty date was 30 September 2009 which was within 90 days after the program's implementation. 7. The advisory official also stated that changes to the number of months allocated to family members can be made anytime to include once a member leaves the military, provided the member allocates at least 1 month of benefits prior to separation. If the member allocates zero months and subsequently leaves military service, the member is not authorized to transfer unused benefits. The TEB website shows no action was taken by the applicant to transfer any benefits. 8. The VA is restricted to pay for education benefits compensating no more than one retroactive year from the date a claim is received by the VA. There is no evidence that the applicant made a previous claim to the VA. If he were granted relief, the beginning date for his family members to use the transferred benefits would be the date of relief unless previous specific claims were submitted to the VA and verified by the VA upon approval. 9. On 3 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. By email, on 3 November 2011, the applicant concurred with the advisory official's recommendation. 10. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible member is 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 and: 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; or 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 the maximum amount of time allowed by such policy or statute; or 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. 11. The policy further states the Secretaries of the Military Departments will 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 maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 12. 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 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 was fully eligible to transfer his education benefits under the TEB prior to retirement, but he did not do so. The program was implemented in July 2009 and he retired on 30 September 2009. Prior to retirement, he did not apply for the transfer of benefits while on active duty. 2. The DOD, VA, and the Army conducted massive public campaigns 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: * be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided the Soldier does not have an adverse action) * 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 the request, unless retirement eligible 3. Nevertheless, during the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit. This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the programs implementation. Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling. 4. The applicant's retirement date was 30 September 2009. It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while in an active duty status he would have done so. Therefore, as a matter of equity, his records should be corrected to show he did so in a timely manner prior to his effective date of retirement. BOARD VOTE: ___x____ ____x__ ___x_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 Post 9/11 GI Bill benefits to his family members 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) AR20110019626 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110019626 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1