IN THE CASE OF:	  

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110017331 


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, his retirement date be changed to 2 August 2009 and his records be changed to show he elected to transfer his education benefits to his son under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he was informed by the Fort Lewis Education Benefits counselor that he needed to be on active duty on 31 July 2009 in order to eligible for Post 9-11 GI Bill benefits.

3.  The applicant provides:

* David L. Stone Education Center email, dated 25 August 2011
* 2 DD Forms 214 (Certificate of Release or Discharge from Active Duty), effective 30 June 2009 and 31 July 2009
* Department of Veterans Affairs (VA), Muskogee, OK, letter, dated 
31 July 2009
* Orders Number 163-0013 and 163-0014, Installation Management Command, dated 12 June 2009
* Letter to Senator Patty Murray, undated, and allied documents
* DD Form 2656 (Data For Payment of Retired Personnel)
* VA Form 22-1995 (Request for Change of Program or Place of Training), dated 15 September 2009
* VA letter, Decatur, GA, undated



CONSIDERATION OF EVIDENCE:

1.  The applicant provides and his official military personnel file (OMPF) contains a DD Form 214 which shows a retirement date of 30 June 2009.

2.  In a letter accompanying his application, dated 23 August 2011, he stated that when he asked the education center counselor at Fort Lewis, WA what date he needed to be on active duty he was informed that "There is no definite date, but the information being disseminated by Department of the Army is 31 July 2009."
Based on this information he changed his retirement date to 31 July 2009.

3.  He provides Orders Number 163-0013, issued by the Installation Management Command, which rescind so much of Orders 233-0042, issued by the same organization, dated 20 August 2008, pertaining to his reassignment and retirement.

4.  His OMPF contains a DD Form 214 which shows he was retired on 31 July 2009.  He was placed on the Retired List on 1 August 2009.

5.  During the processing of this case, on 28 October 2011, a unfavorable advisory opinion was obtained from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, Enlisted Professional Development Branch, which recommended to deny administrative relief to the applicant because he was not a member of the service on or after 1 August 2009, which is a requirement established in law.  It goes on to state that if the ABCMR adjusts the applicant's date of retirement to a date after 1 August 2009, their office could change the advisory opinion based on his eligibility.  The advisory official stated:

   a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of TEB to his/her dependent (on or after 1 August 2009).  The applicant retired from the military service on 31 August 2009; however the TEB online database does not show he transferred benefits as he contends.

	b.  The applicant was eligible to participate in the program and he had dependents eligible to receive those benefits.

	c.  The applicant had more than 20 years of service when he retired; therefore, he would not have incurred an additional service obligation.  Further, he had no record of adverse action.



	d.  A Soldier must initially request to transfer benefits on the Department of Defense's TEB online database.  The TEB online database was operational on 
29 June 2009 and there is no evidence the applicant took the required steps to transfer benefits prior to separation.  However, based on his retirement date of 
1 August his request would have been denied.

6.  He was provided a copy of this advisory opinion and responded on 4 February 2011.  He reiterates that he changed his retirement date to 31 July 2009 based on guidance he received from the Fort Lewis Education Center.  He contends he is a disabled veteran, and it is his hope and desire that the Department of the Army would grant his request to transfer his education benefits to his last son.  He did everything by regulation to ensure he complied with the mandates for the Post 9-11 GI Bill.

7.  An email written by an Education Advisor, Joint Base Lewis-McChord Education Center, provided by the applicant, states the education center did not have specific details about the TEB program at the time of his inquiry on or about 2 March 2009; however, she believed the Army Times published the information prior the education center receiving guidance.  They received general information briefing slides on 28 April 2009, and updated information on 11 June 2009.  The counselor does not confirm or deny that an official from the education center told him to remain on active duty until 31 July 2009 in order to qualify for the Post 
9-11 GI Bill.

8.  DOD established the criteria for the TEB provision of the Post-9-11 GI Bill on 22 June 2009.  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.  Therefore, this information would have been available to the applicant prior to the effective date of his retirement.

9.  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.  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 duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.
	


   b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.

10.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her 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:

	a.  service members eligible for retirement on 1 August 2009 – no additional service required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

	d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;

	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and

	f.  active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he adjusted his retirement date from 30 June 2009 to 31 July 2009 based on information given to him by his local education center.  He provides 2 DD Forms 214 to support his contention.  However, the evidence shows the education center counselor only acknowledged that on 2 March 2009 they informed the applicant that there was no definite active duty dates 


established for the Post 9-11 GI Bill benefits at the time of his inquiry.  Further, by his own admission in his letter to the ABCMR he confirms that the counselor told him, "There is no definite date, but the information being disseminated by Department of the Army is 31 July 2009."  It is unclear why the applicant did not confirm the eligibility requirements prior to his retirement but there is no apparent error or injustice.

2.  DOD established the criteria for the TEB provision of the Post-9-11 GI Bill on 22 June 2009.  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.  Therefore, this information would have been available to the applicant prior to the effective date of his retirement.

3.  The law requires a member to be in an active status at the time he/she requests the transfer.  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.  Therefore, the applicant was not in an active status on 1 August 2009 and is not eligible to transfer his education benefits to his family members under the TEB provision of the Post-9/11 GI Bill.

4.  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.

5.  In view of the above, his request should be denied.

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)                                         AR20110017331





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ABCMR Record of Proceedings (cont)                                         AR20110017331



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