IN THE CASE OF:
BOARD DATE: 28 February 2012
DOCKET NUMBER: AR20110015477
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 correction of his records to show he applied to transfer his education benefits to his daughter under the Post 9/11 GI Bill Transferability Program.
2. The applicant states he was never informed he needed to be on active duty in order to transfer his education benefit to his daughter as he is currently on a medical retirement.
3. The applicant provides:
* Record of Emergency Data
* A letter from the Army Review Boards Agency
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 14 June 2008
* DD Form 214, for the period ending 1 April 2005
* DD Form 214, for the period ending 6 August 1997
CONSIDERATION OF EVIDENCE:
1. With prior enlisted service, the applicant enlisted in the Florida Army National Guard (FLARNG) on 7 August 1997.
2. FLARNG Orders P138-008, dated 17 May 2000, released him from the FLARNG and transferred him to the Texas Army National Guard (TXARNG), effective 7 May 2000. He remained a member of the TXARNG through two extensions.
3. After completing 15 years, 3 months, and 9 days of creditable service for retired pay purposes, the applicant was honorably discharged from the TXARNG, effective 31 March 2010, and he was transferred to the Retired Reserve.
4. During the processing of this case, on 11 October 2011, an advisory opinion was obtained from the Department of the Army, Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch. The advisory official recommended denial of administrative relief unless the applicant could provide evidence showing he attempted to transfer his benefits prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring education benefits.
a. A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of education benefits to his family member(s) on or after 1 August 2009. The applicant's last day of service was 31 May 2010.
b. A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least 10 years of eligible service to transfer to eligible children. The applicant has more the 14 years of service and he was eligible to transfer his benefits before he left the service.
c. A Soldier may only transfer to eligible family members. To be considered an eligible family member the spouse or child(ren) must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits. The applicant had two eligible family members, but he did not complete the requirements in the Transfer of Education Benefits (TEB) online database.
d. A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on the date of their transfer request. The applicant would have incurred a 4-year service obligation because he had less than 20 years of service.
e. A Soldier must have no adverse action (flag) and have an honorable discharge to transfer benefits. The applicant had no adverse action.
f. A Soldier should not be granted relief based on unawareness of law, program rules, or procedures unless he/she left the service during the
implementation phase (first 90 days) of the program. The applicant's last day in the service was 31 March 2010, which was outside of the 90-day window.
g. A Soldier must initially request benefits on the Department of Defense's TEB online database which was operational on 29 June 2009, along with other required steps. The applicant did not take any of the required steps.
h. The Department of Veterans Affairs (DVA) is restricted to pay for education benefits by compensating no more than 1 retroactive year from the date a claim is received by the DVA.
5. On 12 October 2011, a copy of 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.
6. The Post 9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives 2642. In July of 2008, Congress passed a law for the Post 9/11 GI Bill that went into effect on 1 August 2009.
7. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. The general eligibility criteria are as follows:
a. Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active service.
b. Service members also must have served on active duty in the Regular Army; as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302 and 12304 (orders in support of contingency operations, i.e., mobilization); and must have received an honorable discharge at the conclusion of active service.
8. The program guidance stipulates if a service member becomes retirement eligible during the period beginning on 1 August 2009 through 1 August 2013, and agrees to serve the additional specified period of service, the service
member is entitled to transfer benefits to his dependents. A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732:
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted and his supporting evidence has been considered.
2. He submits no evidence to substantiate his contention that he was unaware he had to be on active duty at the time of transfer of education benefits to his family members. The applicant was discharged and assigned to the Retired Reserve effective 31 May 2010. He would have been eligible to transfer benefits had he done so at the time of his retirement. However, he would have incurred an additional 4-year service obligation based on having less than 20 years of active service or 20 qualifying years of service.
3. The program was implemented on 1 August 2009. A Soldier should not be granted relief based on unawareness of law, program rules, or procedures unless he/she left the service during the implementation phase (first 90 days) of the program. The applicant's last day in the service was 31 March 2010, which was outside of the 90-day window of implementation of the program.
4. In view of the foregoing, the applicant neither met the eligibility criteria nor provided sufficient evidence to warrant granting his 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) AR20110015477
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110015477
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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