IN THE CASE OF:
BOARD DATE: 14 August 2012
DOCKET NUMBER: AR20120002487
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 transfer of his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his spouse.
2. The applicant states after 11 years in the U.S. Marine Corps (USMC) and 10 years in the Army, he found out when he attempted to transfer his education benefits in 2011 that there is no record of his spouse he married in 1977.
3. The applicant provides a Marriage Certificate.
CONSIDERATION OF EVIDENCE:
1. Having had prior active service in the USMC, the applicant enlisted in the U.S. Army Reserve (USAR) on 27 July 2000.
2. On 30 September 2010, the U.S. Army Human Resources Command (HRC) issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). This memorandum notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.
3. On 29 April 2011, he was reassigned from his USAR unit to the Retired Reserve effective 4 May 2011.
4. His record does not show that during the period he served in the USAR he served on active duty in any status other than annual training (AT), active duty for training (ADT), or active duty special work (ADSW).
5. In the processing of this case, on 29 March 2012, an advisory opinion was obtained from the Chief, Education and Incentives Branch, HRC. The advisory official recommended disapproval of the applicant's request and stated that:
a. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, Public Law 110-252, section 3020 limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. If the Soldier is a member of the Selected Reserve, the Soldier could earn Post-9/11 GI bill qualifying service by serving on active duty on or after 11 September 2001 for an aggregate period ranging from 90 days to 36 months or more under a call to active duty under Title 10, U.S. Code. (Emphasis added). Duty such as AT, ADT, and ADSW is not qualifying active service for the Post-9/11 GI Bill transfer of education benefits.
b. In addition, the law requires a Soldier to be on active duty or a member of the Selected Reserve at the time of transfer of education benefits to his or her family members on or after 1 August 2009. A Soldier must have 6 years of eligible service on active duty or as a member of the Selected Reserve in order to transfer education benefits to a spouse and at least 10 years of eligible service to transfer benefits to eligible children.
6. The advisory official further stated the applicant had one eligible family member, his spouse. There was no record that the applicant requested to transfer education benefits to his spouse prior to his transfer to the Retired Reserve on 4 May 2011. However, if he had made the request it would have been denied as he was ineligible for the Post-9/11 GI Bill as he did not have qualifying service on or after 11 September 2001 for an aggregate period from 90 days to 36 months or more under Title 10, U.S. Code. Therefore, he could not transfer education benefits to his family members.
7. On 3 April 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. He did not respond.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that during his service in the USAR, the applicant did not serve on active duty under Title 10, U.S. Code. He did not have any qualifying service to be eligible for the Post-9/11 GI Bill. As such, he was ineligible to transfer education benefits to his spouse.
2. In view of the foregoing, there is an insufficient evidentiary 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) AR20120002487
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