IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100023554 


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 correction of his military records to show he transferred his Montgomery GI Bill (MGIB) benefits to his spouse prior to retirement under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he was unable to transfer his MGIB benefits because his status was changed from active duty to retired before he went on terminal leave.

3.  The applicant provides copies of his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) with enclosures and his DD Form 2 (Uniformed Services Identification Card) (Retired).

CONSIDERATION OF EVIDENCE:

1.  At the time of his application and subsequent receipt of that application by this Board, the applicant was on active duty.

2.  After having prior service in the Regular Army, the applicant was ordered to active duty from the U.S. Army Reserve (USAR) on 10 February 2008.

3.  Orders 169-0003, U.S. Army Garrison, West Point, dated 18 June 2010, released the applicant from assignment due to physical disability effective 14 September 2010 with placement on the Retired List effective 15 September 2010.

4.  On 9 September 2010, the applicant signed and dated his application to this Board for relief.  The application was postmarked 10 September 2010.

5.  The DD Form 2 provided by the applicant [mailed on 10 September 2010] shows the date of issue as 15 September 2010.

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 September 2010 shows the applicant:

	a.  entered active duty as a member of the USAR on 10 February 2008;

	b.  served in Iraq from 3 May to 17 December 2008;

	c.  completed 2 years, 10 months, and 19 days of inactive service;

	d.  completed a total of 5 years, 7 months, and 5 days of active duty service; and

	e.  retired due to physical disability effective 14 September 2010.

7.  In the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army, Washington, DC.  The opinion stated the following:

	a.  The applicant met the basic requirements for entitlements and was eligible to receive benefits under the Post-9/11 GI Bill for himself.

	b.  Receiving a retired identification card prior to leaving military service does not change a Soldier's status in relation to the TEB.

	c.  The applicant was not eligible to transfer his MGIB because he was no longer on active duty.

	d.  The opinion is based on Public Law 110-252 and Army and Department of Defense (DOD) policy requiring a Soldier to be on active duty or a member of the Selected Reserve of the Army in order to transfer benefits.  Specific Congressional action would be required to change or amend the current legislation in order to change the applicant's eligibility status.

	e.  The opinion recommended denial of the applicant's request.


8.  On 17 March 2011, the applicant responded to the advisory opinion.

	a.  The applicant contends he attempted to transfer his MGIB to his wife while still on active duty.

	b.  After encountering problems with the TEB website, he made several calls to the help desk.  "They" discovered that because he was issued a retired identification card in June instead of on 15 September 2010, the Defense Enrollment Eligibility Reporting System (DEERS) showed him as retired and would not let him transfer his MGIB.

	c.  He states his active duty identification card was about to expire and because he was about to leave West Point on terminal leave, he was issued a retired identification card, changing his status from active to retired.

	d.  He states he followed the regulation and his attempts to transfer the MGIB to his wife were trumped by errors because his status was changed early.

9.  On 22 June 2009, 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 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 Component service; and 

	d.  for those individuals eligible for retirement on or after 1 August 2010, and before 1 August 2011, 2 years of additional service is required.


10.  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.

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.

12.  DOD, the Department of Veterans Affairs, and the Army conducted a massive public campaign plan 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:  (a) be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided Soldier does not have an adverse action flag) and (b) 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 request, unless retirement eligible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he transferred his MGIB benefits to his spouse prior to retirement under the TEB provision of the Post-9/11 GI Bill.  He further contends he was unable to transfer his MGIB benefits because his status was changed from active duty to retired before he went on terminal leave.

2.  The evidence of record clearly shows the applicant was retired due to physical disability with less than 20 years of qualifying service.  Accordingly, he did not meet the basic eligibility requirements for transferring his MGIB benefits.

	a.  He had to have at least 6 years of service in the Armed Forces on the date of election and be able to serve 4 additional years in the Armed Forces from the date of election; or

	b.  have 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 agree to serve for the maximum amount of time allowed by such policy or statute; or

	c.  be 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 Component service; and 

	d.  furthermore, the policy requires those individuals retiring between 
1 August  2010 and 1 August 2011 to serve an additional 2 years of service.

3.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20100023554



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ABCMR Record of Proceedings (cont)                                         AR20100023554



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