IN THE CASE OF:  

		BOARD DATE:  22 May 2012

		DOCKET NUMBER:  AR20110022308


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, in effect, an exception to policy to transfer his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

* he is being penalized after not being given proper information before his retirement (he retired from the Medical Hold Battalion at Fort Benning, GA)
* he deployed from February 2004 to February 2005 and remained on active duty following his deployment due to numerous medical issues that resulted in his retirement
* he never received a briefing prior to retirement in which he was informed  he needed to transfer his educational benefits to his dependents prior to his retirement
* had he been given that information, he would have transferred the benefit so his dependents would be able to use the benefit
* his son was in middle school at the time of his retirement
* he thought he would be able to use his Post-9/11 GI Bill benefits for his son; however, he was informed that since he is not in an active status in either the Regular Army or the Reserve component, he could not transfer his benefit
* he has had to take out a student loan for his son
* he only wants his son to better himself with a good education

3.  The applicant provides no additional evidence in support of his request.
CONSIDERATION OF EVIDENCE:

1.  On 6 July 1983, the applicant enlisted in the Regular Army.  On 28 April 1986, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR).

2.  On 28 October 1986, he again enlisted in the Regular Army and remained on active duty until he was honorably released on 15 January 1999.  He continued his service in the USAR, in a variety of assignments of increased responsibility, and he attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On 14 April 2005, he was issued a memorandum from the U.S. Army Human Resources Command (HRC), St. Louis, MO, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).

4.  On 2 May 2005, he re-entered active duty as a member of the USAR, and remained on active duty until he was permanently retired with disability on         18 September 2007.

5.  In the processing of this case, on 17 January 2012, an advisory opinion was obtained from the Chief of the Education Incentives Branch at HRC, Fort Knox, KY.  The advisory official did not recommend administrative relief because the applicant was not a member of the service on or after 1 August 2009, which is a requirement established by law.

6.  On 19 January 2012, 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.  In his rebuttal, he stated that he met all of the qualifications to receive the benefit and despite not being on active duty on 1 August 2009, he should be grandfathered and thus, not affected by that requirement.  He further stated he was not aware of the transfer requirements because he was not sufficiently counseled prior to retirement.  Lastly, he stated that he should not be held accountable for not transferring his benefits, and since he is eligible to use the benefits, his dependents should be eligible as well.

7.  On 22 June 2009, Department of Defense (DOD) established the criteria for the 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.

8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be granted an exception to policy to transfer his educational benefits under the provision of the TEB because he was not sufficiently counseled about the Program’s requirements, which in turn prevented him from transferring his benefit to his dependent.

2.  His contention is without merit, as the evidence of record shows he retired on 18 September 2007.  DOD did not establish the criteria for the TEB until 22 June 2009, nearly 2 years after he was retired; therefore, and as a result, his servicing transfer point and education center would not have been privy to this information beforehand. 


3.  He was not on active duty or in an active status as a member of the Reserve component on 1 August 2009.  The law requires a member to be in an active status at the time he/she requests the transfer.  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 or prior and they would have transferred to the Retired List prior to 1 August 2009.  

4.  In view of the foregoing, by law he is not eligible to transfer his education benefits to his dependent under the TEB provision of the Post-9/11 GI Bill.

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)                                         AR20110007920



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ABCMR Record of Proceedings (cont)                                         AR20110022308



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