IN THE CASE OF:	  

		BOARD DATE:  23 May 2012

		DOCKET NUMBER:  AR20110018840 


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 an exception to policy to participate in the transfer of education benefits (TEB) provision of the Post-9/11 GI Bill.

2.  He states he retired on 28 February 2009 after 20 years of service.  He was unaware of the Post-9/11 GI Bill, but he would have been eligible for TEB without further service.  He was informed that if he did not retire, he would have to appear before a medical board to determine his medical fitness for continued service.  He chose to retire instead of appearing before the board.  At the time, due to the nature of his injuries, he believed this action to be in the best interest of the Army.  Had he been informed of the Post-9/11 GI Bill, he would have elected to appear before the medical review board prior to retiring.  This would have delayed his retirement date to later in the year.  Furthermore, he would have elected to transfer benefits prior to retiring.  He is not alone in this regard.  Many Soldiers retired at the same time and were not aware of the Post-9/11 GI Bill.  Clearly, there was a problem, as many retiring Soldiers were not informed to make what was an obvious choice for many of them.

3.  He provides:

* Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP) pertaining to another applicant in Docket Number AR20110007954, dated 2 June 2011 
* a newspaper article


* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* a memorandum, subject: Notification of Medical Disqualification – [Applicant], dated 23 May 2008
* Orders C-07-890605, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 15 July 2008 (retirement orders)
* three DD Forms 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* two National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service) and related documents
* his Enlisted Record Brief
* letters from the Department of Veterans Affairs (VA)

CONSIDERATION OF EVIDENCE:

1.  Following periods of service in the Army National Guard, U.S. Army Reserve (USAR), and Regular Army, on 17 January 2001 the applicant entered active duty as a member of the USAR.

2.  On 15 January 2008, he submitted a DA Form 2339 (Application for Voluntary Retirement).  The form shows he requested 1 March 2009 as his desired retirement date.

3.  He provides a memorandum, subject: Notification of Medical Disqualification – [the applicant], dated 23 May 2008.  The memorandum informed him a review of his medical records had revealed a medical condition that disqualified him for retention in the USAR.  He was given three options:

* elect transfer to the Retired Reserve if otherwise eligible for retirement
* elect to be discharged from the USAR
* elect consideration by a non-duty related Physical Evaluation Board (PEB)

4.  Orders C-07-890605, dated 15 July 2008, directed his release from active duty effective 28 February 2009 and placement on the Retired List on the following day.

5.  His record includes two additional DA Forms 2339, dated 18 and 30 July 2008, that appear to have been prepared to correct his dates of military service.

6.  On 28 February 2009, he was retired after completing 20 years, 2 months, and 6 days of creditable active service.

7.  He provides two letters from the VA.  The first, dated 14 May 2009, entitled him to compensation for service-connected disabilities rated at 30 percent (%) or more.  The second, dated 13 May 2011, rated him at 100% for a service-connected disability

8.  He provides the ROP for ABCMR Docket Number AR20110007954.  The applicant in that case had retired on 31 August 2009 and requested an exception to policy to allow him to apply for TEB.  The ABCMR granted relief based on the fact that the applicant had left military service during the first 90 days of the TEB program's implementation.

9.  He provides an article from the Army Times, dated 19 September 2011, which states, in part, "…The [ABCMR] has ruled that Soldiers who retired from Aug. 1 to Nov. 1, 2009, may not have known that the Post-9/11 GI Bill that took effect Aug. 1 of that year included the right to transfer benefits to a spouse or child, or that the transfer had to be approved before retiring…."

10.  During the processing of this case, on 22 November 2011, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1.  The advisory official recommended disapproval of the applicant's request.  The advisory official stated, in part:

* Public Law 110-252 limits eligibility to transfer unused education benefits to otherwise eligible members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009
* the applicant's last day in service was 28 February 2009
* a Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during implementation phase (first 90 days) of the program

11.  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.  On
29 November 2011, the applicant responded to the advisory opinion, stating he stands by his original statement that had he been aware of the program he would not have accepted the "forced retirement."  He would have appealed to a PEB, which would have delayed his retirement until after the implementation date of the program.

12.  Public Law 110-252 established 1 August 2009 as the effective date for the Post-9/11 GI Bill.


13.  On 22 June 2009, Department of Defense (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 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.)

14.  The policy further states the Secretaries of the Military Departments will provide counseling on the benefits under the Post-9/11 GI Bill to active duty participants and members of the Reserve Components with qualifying active duty service prior to separation or release from active duty and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  By law, the applicant is not entitled to the relief he has requested.  Public Law 110-252 established 1 August 2009 as the effective date of the Post 9/11 GI Bill, including provisions for TEB.  The applicant submitted an application for voluntary retirement in January 2008 and retired on 28 February 2009, well before these provisions of law went into effect.  

2.  He contends that if he had been informed of the Post-9/11 GI Bill, he would have elected to appear before a PEB prior to retiring, which would have delayed his retirement date to later in the year.  The record shows he was given the option of consideration by a PEB in May 2008.  DOD did not disseminate eligibility criteria for the Post-9/11 GI Bill TEB to the service branches until June 2009; therefore, he could not have been informed about the program in May 2008.   Further, even if he had elected consideration by a PEB, it is highly unlikely that a PEB initiated in mid-2008 would have lasted more than a year.

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)                                         AR20110018840



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ABCMR Record of Proceedings (cont)                                         AR20110018840



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