IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120001374 


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, correction of his military records to show he transferred his Montgomery GI Bill (MGIB) benefits to his son prior to retirement under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  He states at the time of his retirement, the TEB under the Post 9/11 GI Bill did not exist.  However, had it existed he would have transferred his benefits to his eligible dependents.

3.  He provides:

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty (AD))
* a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)

CONSIDERATION OF EVIDENCE:

1.  He provided two DD Forms 214 which show he served on AD in the following components during the periods of service shown:

* Regular Army from 20 January 1977 through 29 April 1992
* Army National Guard from 7 December 2003 through 1 April 2005

2.  The NGB Form 22 he provides shows he was honorably transferred to the Retired Reserve on 31 July 2006.  He completed 30 years, 3 months, and 9 days of total service for retired pay.

3.  Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits.

	a.  A Soldier must be on AD or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent (on or after 1 August 2009).  The applicant’s last day in service was 31 July 2006.  He would not have been eligible to transfer the benefit because he was not a member of the service on or after 1 August 2009, which is a requirement established by law.

	b.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer to eligible children.  The applicant had more than 30 years of service upon his retirement, but he was not eligible to transfer to either his spouse or his children because the law requires the Soldier to be in the service on or after 1 August 2009.

	c.  A Solider must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  If the applicant would have been in the service on 1 August 2009, he would have incurred no additional service, but he left the service prior to 1 August 2009.

	d.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.  There is no evidence of an adverse action in the applicant's record and his characterization of service at the time of his retirement was honorable.

	e.  A Soldier 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 day in the service was 31 July 2006, which was before the program's implementation.

	f.  A Soldier must initially request to transfer benefits on the Department of Defense's (DOD) TEB online database.  The TEB online database was operational on 29 June 2009.  The applicant could not have taken the required steps because the program was not available.

4.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states 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 (AD 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 from 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 AD or 20 qualifying years of Reserve service.

5.  The policy further states the Secretaries of the Military Departments will provide AD participants and members of the Reserve Components with qualifying AD service individual pre-separation or release from AD 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.

6.  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 evidence shows the applicant transferred to the Retired Reserve on 31 July 2006.

2.  DOD established the criteria for the TEB provision of the Post-9-11 GI Bill on 22 June 2009.  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.  Therefore, this information would not have been available to the applicant prior to the effective date of his retirement.

3.  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 educational 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 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)                                         AR20120001374



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120001374



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1