IN THE CASE OF:	  

		BOARD DATE:  10 May 2012

		DOCKET NUMBER:  AR20110019271 


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 is eligible to transfer his education benefits to his children under the Transfer Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states that while awaiting retirement orders, he was apprised of the new Montgomery GI Bill (MGIB) by his commander.  He asked about transferring his benefits to his two sons and was advised to wait until after 1 August 2009 when the Post-9/11 GI Bill went into effect.  He contends he was never advised that he needed prior approval nor did his commander know that he needed such approval prior to retirement.  He has attempted numerous times to transfer the benefits online and through the Department of Veterans Affairs but to no avail.

3.  The applicant states he read the 19 September 2011 edition of the Army Times which explained the Army Board for Correction of Military Records had ruled that Soldiers who retired during the period 1 August - 1 November 2009 may not have known the Post-9/11 GI Bill that took effect 1 August 2009 included the right to transfer the educational benefits to a spouse or child or that the transfer had to be approved prior to retiring.  He was released from active duty on 31 May 2009 after mobilization and the rule was not known at Fort Dix, NJ, or at Fort Meade, MD.  His children are ages 8 and 13 and would benefit from the new MGIB.  He made every effort to transfer the benefits but did not know he needed approval prior to retirement.

4.  The applicant provides reassignment and retirement orders, documents pertaining to education assistance programs, two DD Forms 214 (Certificate of Release or Discharge from Active Duty), Federal recognition orders, and a National Guard Bureau Form 22 (Report of Separation and Record of Service).

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant in the Army National Guard (ARNG).  He was discharged from ARNG and transferred to U.S. Army Reserve (USAR) on 7 August 2008 in the rank of lieutenant colonel.

2.  Orders 09-190-00003, 87th USAR Support Command, dated 9 July 2009, released him from his Selected Reserve unit and assigned him to the Retired Reserve effective 1 August 2009.

3.  During the processing of this case, an advisory opinion was obtained from the U.S. Army Human Resources Command (HRC) Education and Incentives Branch.  This office recommended denial of the applicant's request based on the fact that he was not serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.

4.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In response to the advisory opinion, he provided a three-page statement in which he essentially contends that his last day in the service was not 31 July 2009 because his retirement orders transferred him to the Retired Reserve on 1 August 2009 and, therefore, his last day in the service was 1 August 2009.  He also contends that his eligibility remained throughout the implementation date of 1 August 2009 because he was not discharged on 31 July 2009 as the HRC opinion implies.  Instead, he was transferred to the Retired Reserve on that date.  There is a difference for a USAR Soldier due to his indefinite status while waiting for retirement pay at age 60.  He is category one for the first 5 years after reassignment to the Retired Reserve, which is the priority group for voluntary or involuntary call to active duty by a Presidential call-up.

5.  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.

	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 serving on active duty or as a member of the Selected Reserve on or after 1 August 2009, which is a requirement established in law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests approval of TEB under the Post-9/11 GI Bill to his children.

2.  He contends he was never advised that he needed prior approval nor did his commander know that he needed such approval prior to retirement.  He attempted numerous times to transfer the benefits but to no avail.  He also contends that his last day in the service was not 31 July 2009 because his retirement orders transferred him to the Retired Reserve on 1 August 2009 and, therefore, his last day in the service was 1 August 2009.

3.  The applicant's argument is without merit because there is no provision allowing a Soldier to be in the Selected Reserve and the Retired Reserve at the same time.  The orders are very clear.  He was assigned to the Retired Reserve on 1 August 2009.  Therefore, he did not hold a qualifying Selected Reserve status on or after 1 August 2009.

4.  The policy to transfer benefits was not implemented until July 2009 and required individuals to be serving on active duty or be a member of the Selected Reserve as of 1 August 2009.  He retired on 31 July 2009; therefore, he is not eligible to transfer benefits under the program to his family members.

5.  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 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)                                         AR20110019271



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ABCMR Record of Proceedings (cont)                                         AR20110019271



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