IN THE CASE OF:
BOARD DATE: 18 April 2012
DOCKET NUMBER: AR20110020474
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 approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to his dependent daughter.
2. He states:
a. The conditions for the use and transfer of the new GI Bill were vague when they were first introduced.
b. He was an Army Reserve Soldier who entered sanctuary status following his 18th year of active duty. He was not told of the specifics of the new GI Bill.
c. He was not afforded the opportunity to attend many of the out-processing briefings while others were allowed to attend.
d. He was not allowed to extend beyond 20 years to be eligible for a benefit which began a month or two after his mandatory discharge from active duty.
3. He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 1173 (U.S. Uniformed Services Identification and Privilege Card) for his dependent, and an article from the Army Times.
CONSIDERATION OF EVIDENCE:
1. The applicant retired on 31 May 2009 in the rank of lieutenant colonel/O-5 upon completion of sufficient years of service.
2. During the processing of this case, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY.
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 daughter because he was not on active duty or a member of the Selected Reserve on or after 1 August 2009 which is a requirement established in law.
c. The advisory official recommended denial of the applicant's request.
d. The TEB online database shows the applicant had two eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System as of 1 August 2009. If he had met all the prerequisites, including being a member of the service on or after 1 August 2009, he would have been eligible to transfer benefits to his two dependents (spouse and child).
e. The applicant's last day in military service was 31 May 2009 which was prior to the program's implementation.
3. On 10 January 2012, 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 within the allotted timeframe.
4. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible individual is 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.
5. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions regarding his entitlement to transfer of TEB under the Post-9/11 GI Bill to his daughter are acknowledged.
2. However, since he retired on 1 June 2009 which is prior to the implementation of the Post-9/11 GI Bill TEB Program, he is not eligible to transfer benefits under the program to his dependent child.
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) AR20110020474
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ABCMR Record of Proceedings (cont) AR20110020474
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