IN THE CASE OF:
BOARD DATE: 29 September 2011
DOCKET NUMBER: AR20110000464
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 his educational benefits to his spouse and/or children under the Post 9/11 GI Bill Transferability Program.
2. The applicant states he was placed on the Temporary Disability Retired List (TDRL) on 1 November 2008, removed from the TDRL, and permanently retired on 26 June 2010. He believes this should enable him to transfer his educational benefits to his spouse and/or children.
3. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 November 2008 and U.S. Army Physical Disability Agency Orders D176-04, dated 25 June 2010.
CONSIDERATION OF EVIDENCE:
1. On 4 June 2002, the applicant enlisted in the Regular Army. On 1 November 2008, he was retired and placed on the TDRL. On 25 June 2010, he was permanently retired due to disability.
2. During 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, dated 25 May 2011, which recommends denial of the applicants request. The advisory opinion also states:
a. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. The law limits eligibility to transfer unused benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
b. the applicant is not eligible to transfer benefits under the Post 9/11 GI Bill Transferability Program because he was not serving on active duty or as a member of the Selected Reserve on or after 1 August 2009, as required by law.
3. On 27 May 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.
4. On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible member is 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 service or 20 qualifying years of Reserve service.
5. 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.
6. 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:
The applicant's request was carefully considered. However, he was placed on the TDRL on 1 November 2008, approximately 9 months prior to implementation of the Post 9/11 GI Bill Transferability Program; therefore, he is not eligible to transfer benefits to his dependents under this program. The date of his permanent disability retirement of 25 June 2010 is of no consequence.
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.
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