BOARD DATE:	 12 June 2012

		DOCKET NUMBER:  AR20110024719 


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 her records to show she transferred her Montgomery GI Bill (MGIB) educational benefits to her daughter under the
Post-9/11 GI Bill.

2.  The applicant states while going through the Physical Disability Evaluation System (PDES) process, both her and her husband sought information regarding the transfer of her MGIB benefits to her family members.

	a.  At the time, the program was new and personnel of the responsible organizations were not knowledgeable of the process.

	b.  She states she will not be able to work or attend college due to her disability.  The transfer of her educational benefits to her daughter will ease the financial burden on her husband and allow her daughter to obtain a college education.

3.  The applicant provides a copy of the Department of Veterans Affairs (VA) decision on her disability claim that shows she was granted compensation for her service-connected disabilities, effective 30 December 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 6 November 2001.  She was awarded military occupational specialty 92Y (Unit Supply Specialist).
2.  The applicant reenlisted in the RA on 17 December 2003 and she was promoted to sergeant (SGT)/E-5 on 1 October 2006.

3.  She served in Iraq from 3 April 2003 to 2 April 2004 and in Kuwait from
14 November 2005 to 3 November 2006.

4.  On 22 September 2009, a Physical Evaluation Board (PEB) found the applicant physically unfit, recommended a combined rating of 70%, and placement on the Temporary Disability Retired List (TDRL).  The applicant concurred with the PEB's findings and recommendation.

5.  Orders 275-2224, issued by Headquarters, U.S. Infantry Center, Fort Benning, GA, dated 2 October 2009, released the applicant from assignment and duty on 29 December 2009 because of physical disability and placed her on the TDRL effective 30 December 2009.

6.  A DD Form 2648 (Army Career and Alumni Program (ACAP) for Active Component Service Members) shows that on 15 October 2009, the applicant accepted pre-separation counseling on services and benefits that included her MGIB education benefits.

7.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably retired from active duty on 29 December 2009 based on disability (temporary).  She completed 8 years, 1 month, and 24 days of creditable active service that included 1 year, 11 months, and 20 days of foreign service.

8.  In the processing of this case, on 17 February 2012, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Enlisted Professional Development Branch, Washington, DC.

	a.  The advisory official does not recommend administrative relief.

	b.  He notes the applicant's last day in service was 29 December 2009.

	c.  The applicant is eligible to receive benefits under the Post-9/11 GI Bill for herself, as she meets the basic requirements for entitlements.

	d.  The advisory official states 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 had more than
6 years of service, but less than 10 years of service at the time of her physical disability processing and separation.
	e.  The advisory official states the applicant was eligible to transfer benefits under the Post-9/11 GI Bill transferability program to her spouse, but not to her child.  However, she did not attempt to transfer her benefits to her spouse before leaving military service.

	f.  He adds that, without exception, a Soldier must agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  The applicant would have incurred an additional
4-year service obligation before transferring her educational benefits to her child because she had less than 10 years of service at the time.  Soldiers who do not commit to the required service obligation, regardless of the reason for discharge, are not eligible to transfer their Post-9/11 GI Bill benefit.

	g.  The advisory official states the Transfer of Education Benefit (TEB) online database was operational beginning 29 June 2009.

9.  On 22 February 2012, the applicant was provided a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

10.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides authority to transfer unused educational benefits to family members.  This law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer to one or more of the specified family members.

	a.  The Post-9/11 GI Bill Transfer of Education Benefits Program was implemented on 1 August 2009.

	b.  A Soldier must agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009. 

	c.  Department of Defense Instruction requires all Soldiers with between
6 and 10 years of service to commit to the required service obligation of 4 years before being approved to transfer the benefit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her MGIB educational benefits should be transferred to her daughter under the Post-9/11 GI Bill transferability option because she qualified to transfer her educational benefits, but personnel involved in the program were not knowledgeable of the process.

2.  The applicant was eligible to transfer her benefit to her spouse, effective
1 August 2009.

3.  On 22 September 2009, a PEB found the applicant physically unfit and recommended her placement on the TDRL.

4.  On 2 October 2009, orders were issued directing her release from assignment and duty on 29 December 2009.

5.  On 15 October 2009, the applicant received ACAP counseling on her education benefits.

6.  She was placed on the TDRL effective 30 December 2009.

7.  There is no evidence the applicant took any action to request transfer of her educational benefits to her spouse (or daughter) while she was on active duty.

8.  A request to transfer her benefit to her daughter would have required a 4-year service obligation, which the applicant was not eligible to incur because of her medical separation processing.  As such, the applicant did not satisfy the qualifying criteria for the transfer of the benefit to her daughter.

9.  Considering all the evidence and information presented by the applicant, together with the evidence of record, 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 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)                                         AR20110024719



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ABCMR Record of Proceedings (cont)                                         AR20110024719



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