BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100024460 


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, an exception to policy to transfer his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his eligible dependents.

2.  He provides no statement and no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the New York Army National Guard (NYARNG) in pay grade E-1 on 29 February 2000.

2.  On 16 November 2006, he was ordered to full-time National Guard duty in an Active Guard Reserve status for a period of 6 months with a reporting date of 19 November 2006.  He entered active duty on 19 November 2006.

3.  On 30 January 2009, a physical evaluation board (PEB) rendered him unfit for his assigned duties based on his diagnoses of low back pain and injured neck sustained when he injured his back jumping from a 5-ton truck in Kuwait.  The PEB recommended that he be separated with severance pay with a 20-percent combined disability rating.  On 2 February 2009, he concurred with the findings and recommendations of the PEB.

4.  He was honorably discharged from active duty and the NYARNG in pay grade E-5 on 11 April 2009 for disability with severance pay.

5.  In an advisory opinion, dated 19 May 2011, the GI Bill Program Manager, ARNG Education Branch, stated Public Law 110-252 established legal limitations for the transferability of unused Post-9/11 GI Bill benefits.  The law required a service member to be on active duty on or after 1 August 2009 and the applicant's last day in the service was 11 April 2009.  He was not in the service when the program was implemented, so he is not eligible to transfer his benefits based on requirements in the law.  He is eligible to use the benefits himself, but he is not eligible to transfer his benefits because he was not in service on or after 1 August 2009.  Based on the foregoing, the ARNG official recommended denial of the applicant's request.

6.  On 20 May 2011, he was provided a copy of this advisory opinion for acknowledgment and/or rebuttal.  In his rebuttal, dated 23 May 2011, he stated he wished to refute the claim that he was not qualified to transfer his unused benefits to eligible dependents.  He did not leave the Armed Forces because he wanted to, he was given a medical discharge because he was injured in Iraq.  He asks why he should he be penalized for performing his duties and serving his country in a time of war.  He disagrees with the advisory opinion because it was not his fault that he is not currently serving in the Army Forces.

7.  On 22 June 2009, the Department of Defense 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 Department of Defense) 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.

8.  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.

9.  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 contends his records should be corrected to allow him an exception to policy to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his eligible dependents.

2.  The evidence of record shows on 30 January 2009 a PEB found him unfit for further service dues to injuries sustained in Kuwait and recommended he be discharged for disability.  He concurred with the findings and recommendations of the PEB and was discharged from active duty on 11 April 2009.  For entitlement to transfer education benefits under the TEB provision of the 
Post-9/11 GI Bill, the law required a service member to be on active duty on or after 1 August 2009.

3.  His last day of service was 11 April 2009.  He was not in the service on or after 1 August 2009; therefore, by law he is not eligible to transfer his education benefits under the TEB provisions of the Post-9/11 GI Bill.

4.  In view of the foregoing, there is no basis for granting his request.


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)                                         AR20100024460



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ABCMR Record of Proceedings (cont)                                         AR20100024460



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