BOARD DATE: 8 November 2011
DOCKET NUMBER: AR20110005740
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, approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to his son.
2. The applicant states he requested in August or September of 2008 to transfer his Montgomery GI Bill [Post 9/11 GI Bill] to his son; but, no records were found.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 31 January 2009.
CONSIDERATION OF EVIDENCE:
1. After completing 20 years and 1 day of creditable active service, the applicant retired from the Regular Army on 31 January 2009 in the rank/grade of staff sergeant (SSG)/E-6.
2. On 22 June 2009, Department of Defense (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 individuals 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.
3. 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 (emphasis added) 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.
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 are 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 to his dependents because he was not a member of the service on or after 1 August 2009, which is a requirement established in law.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests, in effect, approval of TEB under the Post-9/11 GI Bill to his son.
2. The applicant contends he requested transfer of his education benefits to his son in August or September of 2008; however, the policy to transfer benefits was not implemented until July 2009 and required individuals to be on active duty as of 1 August 2009. He retired on 31 January 2009, approximately 5 months prior
to the implementation of the Post 9/11 GI Bill Transferability Program; therefore, he is not eligible to transfer benefits under the program to his family members.
3. In view of the foregoing, there is no basis for granting the applicant's requested 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) AR20110005740
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