IN THE CASE OF:	  

		BOARD DATE:	  1 JULY 2010

		DOCKET NUMBER:  AR20090019121 


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 his effective date placing him on the Retired Reserve list be adjusted from 8 July 2009 to 6 August 2009 to allow him to meet the Post 9/11 GI Bill criteria to transfer his education benefits to his family members.

2.  The applicant states he was never counseled regarding the Post 9/11 GI Bill benefits and was placed on the Retired Reserve list 23 days short of meeting the eligibility criteria.  He contends he would not have retired prior to 1 August 2009 and forfeited such a significant benefit had he been counseled.

3.  The applicant provides the following in support of his application:

* Voluntary Retirement packet
* Office of the Under Secretary of Defense memorandum, Subject:  Directive-Type Memorandum (DTM) 09-003: Post 9/11 GI Bill, dated
22 June 2009
* Two DA Forms 4856 (Developmental Counseling Form) with conflicting dates on the front and back

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 14 February 1984.  He was appointed as a second lieutenant in the Military Intelligence branch, effective 6 January 1992.

2.  On 16 March 2006 the applicant was notified of his eligibility for retired pay at age 60 (Twenty Year Letter). 

3.  The applicant was ordered to active duty on 11 November 2007 in support of Operation Iraqi Freedom and was honorably released from active duty (REFRAD) on 4 January 2009.

4.  On 3 March 2009 the applicant requested retirement into the Retired Reserve.   On 5 March 2009 he was assigned to the 2125th Garrison Support Unit, (GSU) Decatur, Georgia.

5.  Order Number 09-064-00002, Headquarters, 81st Regional Support Command, Fort Jackson, South Carolina, assigned the applicant to the Retired Reserve on 8 July 2009.

6.  An advisory opinion was obtained in the processing of this case on
23 April 2010.  The Chief, Personnel Services, U. S. Army Human Resources Command, St. Louis, Missouri stated in accordance with Department of Defense Post 9/11 GI Bill policy service members must currently be serving on active duty or participating in the Selected Reserve (TPU, IMA, AGR) on or after 1 August 2009 in order to qualify to transfer benefits to their family members. 

7.  On 4 May 2010, the applicant responded to the advisory opinion.  He stated the advisory opinion offers no new information and reiterates his request to have his effective date of transfer amended to a date of 1 August 2009 or later.  He further stated the counseling dates are conflicting and he was physically serving in Iraq in September 2008 when one counseling session was conducted. 

8.  The applicant provides copies of his retirement counseling checklist which contains two DA Forms 4856 with the following information:

	a.  Part I (Date of Counseling) shows "20090310.  Part II (Background Information) reads "ON 20090310 YOU ARE BEING COUNSELED ON YOUR DECISION TO LEAVE THE ARMY."  The document appears to have the applicant's signature with no date and the commander's signature with a date of "20080916."  

	b.  Part I (Date of Counseling) shows "20070508.  Part II (Background Information) reads "ON 20070508 you are being counseled on your decision to separate for the Army Reserve Troop Program Unit (TPU)."  Part III (Summary of Counseling) shows that after being counseled by the Army Reserve Career Counselor the applicant decided to separate from the TPU in order to retire.  The document appears to have the applicant's signature with no date and the counselor's signature with a date of "20090317."  

9.  On 22 June 2009, the Department of Defense 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; 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 for the maximum amount of time allowed by such policy or statute, or 

	c.  is or becomes retirement eligible during the period from August 1, 2009, through August 1, 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. 

10.  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).  Provide those records to the Defense Manpower Data Center and the Department of Veterans Affairs (DVA).

11.  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's request to have the date he was transferred to the Retired Reserve changed from 8 July 2009 to 6 August 2009 in order to transfer his education benefits to his family members was carefully considered; however, the applicant's contention that he was never counseled on Post 9/11 GI Bill benefits is not a sufficient basis to grant relief.

2.  The applicant contends he was never counseled on Post 9/11 GI Bill benefits during his pre-separation processing as directed in the Department of Defense (DOD) guidance released 22 June 2009.  However, although the counseling forms contain conflicting dates, all dates listed on the counseling forms occurred prior to the release of the DOD guidance; consequently, it was not possible for him to receive such counseling.  

3.  Further, the applicant was transferred to the Retired Reserves on 8 July 2009 prior to the release of the Army Post 9/11 GI Bill Implementation Policy guidance which was published on 10 July 2009.  Given that the program was not implemented within the Army until a date after his transfer to the Retired Reserves, the applicant is not eligible for this program.

4.  However, if the applicant should be recalled to active duty and serve before    2 August 2012, he would be eligible for the program.

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 that 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)                                         AR20090019121



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ABCMR Record of Proceedings (cont)                                         AR20090019121



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