IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100020391 


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 her dependents.

2.  The applicant states, in effect, that:

* she served in the U.S. Army Reserve (USAR) from 17 June 1980 to           14 December 2004
* she was mobilized in support of Operation Enduring Freedom from         17 January 2003 to 17 July 2004, for which she earned veteran status
* her 24 years of service should entitle her to exercise her right to transfer her educational benefits to her dependents, as stipulated in the Post-9/11 GI Bill law
* she has a master's level of education and does not need to further her own education through the GI Bill
* because her children had to cope with her absence while she served her country for an extended period of time, they earned the right to share in the benefits offered through the Post-9/11 GI Bill
* she was retired when this entitlement came into effect, and doesn't feel that current military status should be a determining factor when deciding who is entitled to the funds
* she accomplished her active duty service after 9/11 and served honorably for 24 years


3.  The applicant provides the following:

* Orders M-013-0007, Headquarters, U.S. Army 77th Regional Support Command (RSC), Fort Totten, NY, dated 13 January 2003
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 10 July 2004
* Army Human Resources Command (AHRC) Form 249-2-E (Chronological Statement of Retirement Points), dated 16 July 2004
* Orders 04-349-00036, Headquarters, U.S. Army 77th RSC, Fort Totten, NY, dated 14 December 2004

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR, for a 6-year term, on 17 June 1980.     She completed training and was awarded military occupational specialty 71G (Patient Administration Specialist) [later designated as 91G].  

2.  On 20 July 2000, she was notified of her eligibility for retired pay at age 60 (Twenty Year Letter). 

3.  On 17 January 2003, she was ordered to active duty, in support of Operation Enduring Freedom, by Orders M-013-0007.

4.  Orders A-03-361-0012, Headquarters, U.S. Army 77th RSC, Fort Totten, NY, dated 14 December 2004, amended Orders M-013-0007 by changing the period of active duty from 365 days to 544 days.

5.  On 10 July 2004, she was honorably released from active duty, at the completion of her required period of active service, and transferred to the 7207th Medical Support Unit, Webster, NY, a Troop Program Unit of the USAR.   

6.  Orders 04-349-00036 released her from her current assignment and transferred her to the USAR Control Group (Retired), effective 14 December 2004.    

7.  She provides:

   a. Orders M-013-0007 and her DD Form 214, for the period ending 10 July 2004, which document her active duty service in support of Operation Enduring Freedom.

   b. AHRC Form 249-2-E, dated 16 July 2004, which documents her service by retirement years, from 17 June 1980 through 16 June 2004.  
   c. Orders 04-349-00036, which released her from her current assignment and transferred her to the USAR Control Group (Retired). 

8.  An advisory opinion was obtained on 1 February 2011 in the processing of this case.  An official in the 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 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; consequently, 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.  This opinion is based on legal authority outlined in section 3319(b) of Public Law 110-252.  The official recommended disapproval of the applicant's request and stated:

9.  The applicant was provided a copy of this advisory opinion and responded with a rebuttal on 16 March 2011, wherein she stated that she understood that specific congressional action would be required to change or amend the current legislation to change her eligibility status.  She advised that she will work with her representatives to change the law; in the event that happens, she will again request consideration of her request to transfer benefits.

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 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 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
* document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316
* provide those records to the Defense Manpower Data Center and the VA

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.  Paragraph 17 provides guidance on the transferability of unused benefits to dependents.  This paragraph states, in pertinent part, that a Soldier, whose request to transfer benefits is approved, will incur an additional service obligation.  Soldiers are expected to service this additional service obligation in the same component.  However, if a Soldier is released or separated from that component prior to completion of the additional service obligation, transferred benefits will be revoked unless the Soldier agrees to serve the remaining period, or more, in another component.

   a. Paragraph 17a (Eligibility) (1) states, in pertinent part, that eligibility for transferability of unused benefits to dependents is limited to those Soldiers of the Armed Forces who: 

* fulfill Post 9/11 GI Bill eligibility requirements
* at the time of the approval of the Soldier's request to transfer entitlement to educational assistance, do not have an adverse action flag
* are eligible for the Post 9/11 GI Bill

   b. Paragraph 17a (4) states, in pertinent part, that as an additional eligibility criteria, the ability to transfer unused benefits to dependents is limited to those Soldiers of the Armed Forces who are, or will become, retirement eligible during the period 1 August 2009 through 1 August 2013; and who agree to serve an additional period, if required.  

   c. Paragraph 17a (4) (a) states, in pertinent part, that Soldiers eligible for retirement [but not yet retired] on or before 1 August 2009 incur no additional service obligation.

   d. Paragraph 17a (4) (f) states, in pertinent part, that paragraph 17a (4) does not apply to those who retired on or before 1 August 2009, unless they are recalled to active duty and serving on or after 1 August 2009 and before 2 August 2012.

   e. Paragraph 17a (4) (f) further states, in pertinent part, that those who retired on or before 1 August 2009 were, by law, not eligible to transfer unused Post 9/11 GI Bill benefits, because their last day of duty will be [on or before] 31 July 2009 and they will transfer to the retired list on [or before] 1 August 2009.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her records should be corrected to allow her an exception to policy to transfer her education benefits to her dependents, under the TEB provision of the Post-9/11 GI Bill.

2.  The law requires a member to be in an active status at the time he/she requests to transfer unused Post 9/11 GI Bill benefits.  The applicant was not in an active status on 1 August 2009; therefore, she is not eligible to transfer her education benefits under the TEB provision of the Post-9/11 GI Bill.

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)                                         AR20100011333



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ABCMR Record of Proceedings (cont)                                         AR20100020391



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