IN THE CASE OF:
BOARD DATE: 20 September 2012
DOCKET NUMBER: AR20120001363
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 that his date of retirement be changed to some point after 1 August 2009 to allow him to take advantage of the Post 9/11 transfer of educational benefits program. In effect, he is requesting an exception to the law requiring mandatory removal from an active status at age 60.
2. The applicant states his unit did not have a retirement briefing program and the Virginia Army National Guard (VAARNG) did not inform him of all of his retirement benefits. He retired on 24 July 2009 and missed out on the start date for transferring his benefits to his family,
3. The applicant provides copies of:
* A request for Retention Beyond Age 60, dated 11 February 2008
* Orders 055-400, dated February 2009
* 529th Combat Sustainment Support Battalion (CSSB), memorandum, dated 8 March 2009, Request for a Mandatory Separation Date Extension
* A letter, undated, requesting retirement
* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* A 529th CSSB Memorandum for Record, dated 18 August 2011
* A National Guard Bureau (NGB) response to a Senator's inquiry
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 24 July 1949 and he was a career Soldier. He served more than 30 years of combined ARNG and Regular Army service between 1971 and 2009.
2. On 11 February 2008, the applicant requested an extension beyond his mandatory separation date in order to deploy with his unit.
3. On 8 March 2009, the 529th CSSB requested an extension of the applicant's mandatory separation date beyond his mandatory retirement age to allow him to deploy with his unit in support of Operation Iraqi Freedom. This request was denied; however, the denial document is not available.
4. In an undated letter the applicant requested retirement. He stated he had spent 35 years in the National Guard and he felt it was time to spend more time with his family. He also stated that his civilian job was heading in a direction that would restrict his continued participation.
5. VAARNG Orders 212-005 discharged the applicant from the Army National Guard, effective 24 July 2009, and placed him in the Retired Reserve the following day.
6. A 529th CSSB Memorandum for Record, dated 18 August 2011, states that at the time of the applicant's retirement the VAARNG did not have a retirement briefing program.
7. On 5 December 2011, the NGB responded to a Senator's inquiry concerning the transfer of Post-9/11 GI Bill benefits to the applicant's family members. The Senator's office was advised that although the applicant had significant service and he would have otherwise been eligible to transfer his benefits, the law was very specific as to the requirement that a Soldier had to be serving in an active status when the transfer was executed. The effective date of the law is 1 August 2009 and a Soldier had to be serving on that date. The applicant retired on
24 July 2009, prior to the effective date of the law.
8. Office of the Under Secretary of Defense Directive-Type Memorandum
09-003, dated 22 June 2009, established the policy and procedures for implementing Title 38 U.S. Code, Chapter 33 (Post-9/11 GI Bill). Included in the directive is the procedure for transferring educational benefits to a service member's family. The law states that any member of the Armed Forces (on active duty or Selected Reserve) serving on or after 1 August 2009, who is eligible for the Post-9/11 GI Bill can transfer their entitlement to their spouse or eligible child.
9. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers provides the policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve (Ready Reserve Control Groups and Selected Reserve) Soldiers. It provides that an enlisted Soldier is to be removed from an active status and discharged, transferred to the Individual Ready Reserve, or transferred to the Retired Reserve at age 60.
DISCUSSION AND CONCLUSIONS:
1. A year prior to his retirement the applicant requested and was denied an extension of his mandatory removal date.
2. The applicant had a mandatory removal date of 24 July 2009 (based on reaching age 60); he was properly transferred to the Retired Reserve on 25 July 2009.
3. The law providing for transfer of Post-9/11 educational benefits is very specific. A Soldier had to be in an active status on 1 August 2009 in order to take advantage of the transfer option.
4. By law the applicant had to be removed from an active status on 24 July 2009 because he turned age 60. There is no provision in the law that allows for extending an individual's mandatory removal date to qualify for a benefit.
5. The fact that the VAARNG did not have a retirement briefing program at the time he retired is immaterial. The applicant did not and could not qualify for participation in the Post 9/11 transfer of educational benefits program.
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.
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