IN THE CASE OF:	  

		BOARD DATE:	    29 May 2012 

		DOCKET NUMBER:  AR20110019783 


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 son under the Post 9/11 GI Bill Transferability Program.

2.  The applicant states:

* he was separated from the Arizona Army National Guard (AZARNG) due to a retention board action on 30 September 2009
* he was not given the opportunity to transfer his Post 9/11 education benefits to his child before he retired
* he was not provided any additional information before he left the Individual Ready Reserve (IRR)
* he meets the established criteria for the transfer of Post 9/11 benefits with no additional service required
* he was retirement eligible from 1 August 2009 through 1 August 2013 with more than 20 years of qualifying service
* he had an approved retirement date after 1 August 2009 and before 1 July 2010
* he called the AZARNG Human Resources Office, State Educational Office, National Guard Bureau, and Reserve Office seeking assistance without prevail

3.  The applicant provides copies of information he downloaded from a Post 9/11 GI Bill Website and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant accepted an appointment as Reserve Commissioned Officer on 17 December 1983, in the rank of second lieutenant (O-1).

2.  He accepted an appointment as an O-1 in the AZARNG on 2 February 1984.  He was honorably discharged from the AZARNG on 20 May 1985 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Officer Active Duty Obligor (OADO)).  He was promoted to first lieutenant (O-2), effective 16 February 1986.  He was released from the USAR Control Group (OADO) and was assigned to the USAR Control Group (Annual Training), effective 11 August 1986.  The applicant was released from the USAR Control Group (Annual Training), effective 29 November 1988, to accept an appointment in the AZARNG.

3.  The applicant accepted an appointed in the AZARNG on 30 November 1988, as an O-2.  He was promoted to captain (O-3) on 29 June 1990.  He was promoted to major (O-4) on 6 February 1995.  He was promoted to lieutenant colonel (O-5), effective 18 January 2000.  He was promoted to colonel (O-6), on 23 January 2007.

4.  On 30 November 2007, the applicant's Military Personnel Records Jacket was annotated requiring suspension of favorable personnel action (FLAG) in accordance with Army Regulation 600-8-2, due to exceeding his maximum allowable body fat standard specified in Army Regulation 600-9.  He was told he was being entered in the Army Weight Control Program.

5.  On 1 February 2008, the applicant was notified that he was selected for retention for 1 year, by a 2008 Selection Retention Board.

6.  On 8 February 2009, the applicant was notified he had not been selected for retention and was not recommended.  He was told he would be separated from the AZARNG on 30 September 2009.  

7.  After completing 27 years, 6 months, and 14 days of total service for retired pay, the applicant was released from the AZARNG on 30 September 2009 and he was transferred to the USAR Control Group (Reinforcement).

8.  On 25 January 2010, the applicant submitted an AHRC Form 4145 (Election of Options – Military Service Obligation), showing he elected to transfer to a Selected Reserve unit.

9.  The applicant was released from the USAR Control Group (Reinforcement), effective 21 June 2010 and he was assigned to the Retired Reserve.

10.  During the processing of this case, on 2 March 2012, 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, he attempted to return to the Selected Reserve, 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 in the Selected Reserve was 30 September 2009.  He was then in the IRR until 20 June 2010.  He would have been eligible to transfer the benefits if he transferred before he left Selected Reserve service.  He could not request to transfer his benefits while he was in the IRR.

	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 20 years of service and he was eligible to transfer his benefits to his spouse or children before he left the IRR.

	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.  If the applicant had transferred his benefits prior to leaving the Selected Reserve, he would not have incurred an additional service obligation because he had more than 20 years of service as of 1 August 2009.

	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 21 June 2010, which was outside of the 90-day window.  He left the Selected Reserve on 30 September 2009 and then he was transferred into the IRR.

	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.  Changes to the amount of months allocated to dependents can be made at anytime, to include once you leave military service, provided the service member allocates at least one month of benefits prior to separation.  If the service member allocates zero months, and subsequently leaves military service, they are not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

	i.  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.  No evidence the applicant was provided that the applicant's dependents made a previous claim to the DVA.

11.  On 8 March 2012, 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 nonconcurred with the advisory stating the following:

* he agrees he was eligible for transfer his benefits with no further service commitment before he left the AZARNG on 30 September 2009
* he agrees that upon entering the IRR on 1 November 2009, transferring his benefits was no longer an option
* although his orders show he separated from the AZARNG on 30 September 2009, the truth is his last drilling performance was in July 2009
* he was allowed to split train his final two drills in August and September because he was reporting to the Army Corps of Engineers as a civilian employee with a start date of July 2009
* if he had known or was given the option to transfer his benefits he would have done so before he left the AZARNG
* after separating and learning of his missed transfer option, he called the State G1, the Stated Education Office, and the NGB and was basically told "sorry, however we feel for you"
* 
no one suggested a correction board option, which he learned about in an article from the Military Times (copy attached)
* the article states that the Army Board for Correction of Military Records has already ruled that Soldiers who retired between 1 August 2009 and 1 November 2009 were not told they had the option to transfer benefits

12.  The applicant further states that the argument made in the advisory opinion that he should have been aware of the change to the law or program rules, and that a media campaign was launched and a database was up and running by 30 June 2009, just furthers his argument that he did not know about the option.  He states that no paper was ever sent to the DVA requesting benefits because once again, he did not know he had the option to do so.  He states that his case should be argued that he fits the criteria window as detailed in the Military Times article.  He states he was told about the program during his preretirement briefing and he never received an email or a letter from the Army about transferring his benefits until he was already retired from the AZARNG.  He states his home of record and his email address are the same as they were in 2009.

13.  The applicant concludes by stating that he has sat on many promotion boards, separation boards and discipline boards, and if there was ever a grey area that benefited the Soldier he always sided with the Soldier.  He asks "why would a retiring Soldier who has no further commitment to the Army not transfer his benefits to his child unless he simply did not know he had the option or he was not informed he had the option?"

14.  A review of the interactive Personnel Electronic Records Management System (iPERMS) and the Human Resources Command – Integrated Web Services Soldier Management System shows that U.S. Army Human Resources Command Orders A-05-208191 were published on 4 May 2012 recalling the applicant to active duty from Retired Reserve status, effective 3 June 2012.

15.  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.

16.  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.  

17.  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.  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.

3.  The applicant is correct in the fact that once he transferred from the Selected Reserve into the IRR on 30 September 2009 he was no longer eligible to transfer his 9/11 GI Benefits, however, he was not discharged.  He could have requested to be transferred to the Selected Reserve, if he was otherwise qualified to do so, in order to transfer his benefits.  

4.  Even after he was transferred to the Retired Reserve he was not discharged and, if he was otherwise qualified to do so, he could have requested to be transferred to the Selected Reserve or to be recalled to active duty in order to transfer his benefits.  The 90-day window from program implementation was afforded to those Soldiers who were discharged and/or had no further Army affiliation.  As a member of the Retired Reserve the applicant was subject to recall until he reaches age 60.

5.  As previously stated iPERMS and the Human Resources Command – Integrated Web Services Soldier Management System show that U.S. Army Human Resources Command Orders A-05-208191 were published on 4 May 2012 recalling the applicant to active duty from Retired Reserve status, effective 3 June 2012.  Once he returns to active duty, he should immediately submit his request for transfer of education benefits to the Human Resources Command Education Incentives Branch, to the attention of Ms. Teddi Embrey.

6.  In view of the foregoing, the applicant does not meet the eligibility criteria for transfer of his education 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)                                         AR20110019783



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ABCMR Record of Proceedings (cont)                                         AR20110019783



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