BOARD DATE: 8 March 2011
DOCKET NUMBER: AR20100020810
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, that his records be documented to show he is eligible to participate in the Transfer of Education Benefits (TEB) under the provision of the Post-9/11 GI Bill.
2. The applicant states his dependents are not shown on his records as being potentially entitled to receipt of his educational benefits. He would like to transfer a portion of his educational benefits to his daughter and son.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), his children's birth certificates and Social Security Cards, and 14 related documents from his official military record.
CONSIDERATION OF EVIDENCE:
1. The applicant served on active duty from 13 January 1987 through 31 March 2008. He retired based on longevity in the rank and pay grade of sergeant first class/E-7.
2. On 18 August 2010, the applicant requested that the Administrative and Resources Directorate Training Branch update his records to reflect his dependents were eligible for transfer of his Post 9/11 GI Bill educational benefits. The Directorate's response to this request is not available.
3. In the development of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Enlisted Professional Development Branch. It was opined that the applicant is not eligible to transfer his benefits under the Post 9/11 GI Bill program, because he retired prior to implementation of the policy. Further, the Army does not have legal authority to grant exceptions to policy allowing those who retired or separated prior to 1 August 2009 to transfer their Post 9/11 GI Bill benefits.
4. A copy of the advisory opinion was forwarded to the applicant and he did not respond.
5. On 22 June 2009, the Department of Defense (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 individuals 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.
6. 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.
7. 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 requests that his records be documented to show he is eligible to participate in the TEB under the provision of the Post-9/11 GI Bill.
2. The applicant retired on 31 March 2008 more than a year and a half prior to the enactment of the law allowing the transfer of Post 9/11 GI Bill educational benefits.
3. The law requires a member to be in an active duty status at the time the member makes the request for the transfer. Soldiers separated prior to 1 August 2009 are not eligible to participate unless they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.
4. There are no provisions for retroactive entitlement. Therefore, the applicant cannot be granted relief.
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) AR20100020810
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ABCMR Record of Proceedings (cont) AR20100020810
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