BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110006277 


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 educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his son.

2.  The applicant states he was not informed about this program while he was on active duty.  He retired on 1 February 2008 and he was recently told that he could not transfer the benefits because he is no longer on active duty.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 2008.

CONSIDERATION OF EVIDENCE:

1.  On 18 January 1984, the applicant enlisted in the Regular Army and held military occupational specialty 74D (Chemical Operations Specialist).  He served through multiple reenlistments in a variety of stateside or overseas assignments and attained the rank/grade of sergeant first class (SFC)/E-7.

2.  His record shows, in anticipation of his upcoming retirement, he underwent a pre-separation briefing on 8 November 2006 wherein he checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB) of his DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members).  Items checked "Yes" are mandatory for service members to receive further information or counseling, or attend additional workshops, briefings, classes, etc.
3.  On 31 January 2008, he was honorably retired and placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 February 2008.  He was credited with over 24 years of creditable active service.

4.  On 18 July 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, in the processing of this case.  The advisory official recommended disapproval of the applicant's request.  He stated Public Law 
110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  Further, § 3020 Public Law 110-252, 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.  Based on the details below, we do not recommend administrative relief for the applicant because the applicant was not a member of the service on or after 
1 August 2009, which is a requirement by law.   A Soldier must be currently on active duty or a member of the Selected Reserves at the time of transfer of education benefits to his or her dependent (on or after 1 August 2009).  The applicant's last day in service was 31 January 2008.  He is not eligible to transfer his Post 9/11 GI Bill benefits.

5.  The applicant did not respond to the advisory opinion.

6.  On 22 June 2009, the 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 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.


7.  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.

8.  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 served on active duty from 18 January 1984 to 31 January 2008.  The Post 9/11 GI Bill program was not in effect during his period of military service.  Only those individual who served on active duty on or after 1 August 2009 are eligible to transfer education benefits under the provisions of the Post 
9-11 GI Bill.  Based on the law that is in effect, he is not eligible for the transfer of benefits. 

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)                                         AR20110006277



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ABCMR Record of Proceedings (cont)                                         AR20110006277



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