BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110002226 


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 approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to his wife. 

2.  He states he was under the impression that he completed the necessary paperwork to allow his wife to use his Post-9/11 GI Bill benefits for school during a briefing he attended while he was a member of the Warrior Transition Unit (WTU).  When they tried to register his wife for school he was informed that the process had not been completed.  He attests that he was unaware of the process at the time and his preretirement briefings were conducted between multiple surgeries.  As a result, he believes the fact that he was on several different types of medications may have been the cause for failing to properly complete the transfer process.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 21 November 2006.  He was diagnosed with medical conditions which rendered him unfit for continued service and he was referred to the Physical Disability Evaluation System (PDES) for final determination.  He was assigned to a WTU located at Fort Carson, CO while undergoing the PDES process.

2.  On 12 December 2009, a Physical Evaluation Board (PEB) determined his impairments were rated at a disability level of 30 percent (%) or more, but were not stable enough to render a permanent evaluation at the time.  As a result, he would be placed on the Temporary Disability Retired List (TDRL) until such time as a final evaluation could be rendered.

3.  Orders 061-0009, issued by Headquarters, U.S. Army Garrison, Fort Carson, dated 2 March 2010, show he was reassigned to the Fort Carson Transition Center for separation processing with a reporting date of 27 April 2010.  These orders required him to report to the Army Career and Alumni Program (ACAP) and to attend a Retirement and Survivor Benefits Plan briefing.  These orders also show he was to be retired on 27 April 2010 because of physical disability and placed on the TDRL on 28 April 2010.

4.  His record contains a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 18 February 2010.  Item 13a of this form shows he received a briefing on education benefits.

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with 7 years, 5 months, and 7 days of creditable active service.  He was honorably retired on 27 April 2010 and he was placed on the TDRL in the rank/grade of specialist (SPC)/E-4.

6.  On 27 June 2011, an advisory opinion was obtained from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1.  The advisory official stated the applicant is not eligible to transfer benefits under the Post-9/11 GI Bill transferability program.  Army and Department of Defense (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 by law.  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.  The official recommended disapproval of the applicant's request and further stated this opinion is based on the legal authority outlined in Public Law 110-252, section 3319(b).  Specific Congressional action would be required to change or amend the current legislation in order to change the applicant's eligibility status.

7.  On 28 June 2010, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

8.  On 22 June 2009, DOD guidance established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible individual 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, provided he or she:

	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;

	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;

	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 service; and

	d.  for those individuals who have an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service is required.

9.  The policy further states the Secretaries of the Military Departments will:

	a.  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

	b.  maintain records for individuals who receive supplemental educational assistance under section 3316 of reference (a) and provide those records to the Defense Manpower Data Center and the Department of Veterans Affairs (VA).

10.  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 wife.

2.  The evidence of record shows he was not fully eligible to transfer his education benefits under the TEB prior to his retirement on 27 April 2010.

3.  He contends his failure to transfer his benefits was due to being unaware of the process and the fact that he was taking multiple medications at the time of his preretirement briefings.  However, he failed to provide any evidence showing his decision-making process was impaired by medications he was prescribed or that he attempted to submit a TEB request at all.

4.  Even so, a Soldier must meet one of several 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 and 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.  The applicant could not do this because he was medically unfit for retention;

	b.  have at least 10 years of service and be precluded by either policy or statue from committing to 4 additional years.  The applicant did not have 10 years of service; or

	c.  be retirement eligible.  However, the law defines "retirement eligible" as having 20 years of service.

5.  Unfortunately, the available evidence shows that the applicant did not meet any of the eligibility criteria.


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)                                         AR20110002226



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ABCMR Record of Proceedings (cont)                                         AR20110002226



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