IN THE CASE OF:	  

		BOARD DATE:  29 May 2012

		DOCKET NUMBER:  AR20110020816 


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 adjustment of his retirement date from 31 July 2009 to a later date that will allow him to qualify for the Transfer of Education Benefits (TEB) under the provision of the Post-9/11 GI Bill to his dependent.  

2.  The applicant states, in effect:

   a.  He applied for retirement on 16 September 2008 with a desired retirement date of 1 August 2009.  The date was selected to maximize the use of leave when departing from Germany and to allow his exceptional family members a smooth transition to school at their home of record.
   
   b.  Although Congress had passed the law, the Army had not implemented the program and there were no publications regarding the Post 9/11 GI Bill.
   
   c.  In June 2009, he contacted his assignment personnel and requested a change of his retirement date and he was told the Army does not adjust the retirement date by days but rather to the first day of the following month.  At that point he was too far along in the transition process of moving his family from Germany and enrolling his exceptional family members in school.
   
   d.  Had he been given approrpriate information regarding this program in advance he would have made a different decision regarding his retirement date.



3.  The applicant provides:

* Printout regarding the Post-9/11 GI Bill
* DA Form 7301-R (Officer Service Computation for Retirement)
* Request for voluntary retirement
* Unsigned DA Form 4187 (Personnel Action) to change retirement date

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Regular Army commissioned officer and executed an Oath of Office on 25 May 1988.  He served in a variety of stateside and/or overseas assignments and attained the rank of lieutenant colonel.

2.  He underwent a pre-separation briefing on 20 December 2007 wherein he indicated that his anticipated date of separation was 30 June 2009.  He checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) of his DD Form 2648 (Pre-Separation Counseling Checklist for Active Component Service Members) in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling, or to attend additional workshops, briefings, classes, etc.

3.  On 16 September 2008, he submitted through his chain of command a request for voluntary retirement.  He requested a retirement date of 30 June [sic] (July) 2009 and placement on the retired list on 1 August 2009.  He also requested a curtailment of his overseas tour from 11 August 2010 to 1 August 2009 based on the quality of life issues (medical and educational) associated with his exceptional family members.   

4.  On 3 April 2009, the Installation Management Command - Europe published Orders 093-0001 directing the applicant's retirement from active duty effective 
31 July 2009 and placement on the Retired List on 1 August 2009.

5.  On 31 July 2009, he was honorably retired and placed on the Retired List in the retired rank of LTC on 1 August 2009.  He was credited with over 21 years of creditable active service.

6.  He submitted a magazine article addressing the Post 9/11 GI Bill as well as a DA Form 4187, wherein he requested a change of his retirement date to 
2 August 2009, the applicant dated this form 8 January 2009, but it is not signed by his commander.


7.  On 9 January 2012, an advisory opinion was obtained in the processing of this case.  An official at the Education Incentive Branch, U.S. Army Human Resources Command, Fort Knox, KY, recommended disapproval of the applicant's request because he was not a member of the service on or after 1 August 2009, which is a requirement established in law.  Public Law 110-252 established 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 a member of the Selected Reserve on or after 1 August 209.  This official also stated the individual must:

	a.  Have been in an active duty status or in the Selected Reserve on or after 
1 August 2009.  The applicant's last day in service was 31 July 2009.  He would not have been eligible to transfer the benefits before he retired.  

	b.  Have 6 years of eligible service to transfer the benefit to a spouse and 
10 years to transfer the benefit to children.  The applicant had over 21 years of service but he was not eligible to transfer the benefit to either his spouse or children because he was not in the service on or after 1 August 2009.

	c.  Have eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System (DEERS).  The TEB online database shows the applicant had five eligible dependents enrolled in DEERS.  If he had met the prerequisites (including being a member of the service on or after 1 August 2009) he would have been eligible to transfer the benefits to his spouse or his four children.  However, he could not complete the requirements in the database because this incentive was not available to him.

	d.  Agree to complete any additional service obligation.  If the applicant transferred his benefits prior to leaving military service, he would not have incurred any additional service obligation because he had more than 20 years.  

	e.  Have no adverse action flag and have an honorable discharge to transfer the benefit.  There is no evidence the applicant had an adverse action in his records.  Additionally, he had an honorable discharge. 

	f.  Should not be granted relief based on unawareness of the law, program, rules, or procedures, unless they left the service during the implementation phase (first 90 days of the program).  The applicant's last active duty date was 31 July 2009 which was prior to program implementation.

	g.  Must initially request the transfer through the Department of Defense (DOD) TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the VA.  The respective dependent must then submit an application for VA benefits.  The applicant did not take the required steps to transfer benefits because the program was not yet available. 

	h.  Changes to the number of months allocated to dependents can be made anytime to include once a member leaves the military, provided the member allocates at least 1 month of benefits prior to separation.  If the member allocates zero months and subsequently leaves military service, the member is not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefits.

8.  The applicant submitted a rebuttal to the advisory opinion on 25 January 2012.  He stated:

* The advisory opinion ignores the facts of why he was not on active duty on or after 1 August 2009
* He was unable to obtain sufficient information regarding this program; the responsibility for providing this information sits squarely upon the DOD and the Army
* Despite enjoying his service to the Army and in Germany, he requested a curtailment of his overseas tour to ensure his special needs children receive an appropriate education
* He and his spouse - despite his deployment - spent countless hours with officials in Germany regarding his children's medical and educational needs; the educational needs of his children drove his retirement
* The advisory opinion acknowledges that the information was not readily available until after 1 August 2009
* Had he been given sufficient information, he would have made a different decision regarding his retirement; 1 August 2009 appears to be arbitrary
* He did in fact log into the TEB website after reading about it from a magazine but he has no proof

9.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible member 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.
	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 the maximum amount of time allowed by such policy or statute.

	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.

10.  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.

11.  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 retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

12.  Title 10, U.S. Code, section 8301 states except as otherwise specifically provided by this title or other statute, retirement authorized by statute is effective on the first day of the month following the month in which retirement would otherwise be effective.

13.  Army Regulation 600-8-24 (Officer Transfers or Discharges) prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  Paragraph 2-37e states an officer or warrant officer eligible for retirement under chapter 6 may apply for retirement to be effective not later than the first day of the month following the month in which release is directed.  Chapter 6 of provides for retirement.  It states for all officers retired under provisions of chapter 6, the date of retirement is the first day of a month (Title 5, U.S. Code, section 8301).  Paragraph 6-3 states once the retirement has been approved and the order issued, it will not be amended or revoked except for promotion option, extreme compassionate reasons, or for the good of the service.  The amendment or revocation must occur prior to the retirement date.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, an officer eligible for retirement under chapter 6 of Army Regulation 600-8-24 may apply for retirement to be effective not later than the first day of the month following the month in which release is directed.  Voluntary retirement may not occur on the second day of the month as stated by the applicant.  

2.  The applicant served on active duty from 25 May 1988 to 31 July 2009.  The Post 9/11 GI Bill program was not in effect during his period of military service.  Although he retired on 31 July 2009, one day prior to the implementation of the program, the law states only those individual who served on active duty on or after 1 August 2009 are eligible to transfer education benefits under the provisions of the Post 9-11 GI Bill.  

3.  It was not possible to give him better information because that better information was not available until 22 June 2009, the program was not implemented until 10 July 2009, and while understandable, it was the applicant’s choice not to defer his retirement for one full month.

4.  Regretfully, based on laws and regulation, the applicant is neither entitled to a change to his retirement date nor eligible for the transfer of 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)                                         AR20110020816



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110020816



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1