IN THE CASE OF:
BOARD DATE: 14 August 2012
DOCKET NUMBER: AR20120003314
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, that he be granted an exception to policy to the Post-9/11 GI Bill that will allow him to transfer his education benefits to his dependents.
2. The applicant states that he was just informed of the Post-9/11 GI Bill transfer in January 2012 and desires to transfer his benefits to his children.
3. The applicant provides a copy of his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the U.S. Army Reserve (USAR) on 24 April 1984. He completed his training and continued to serve through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 1 August 2001.
2. He was serving in a troop program unit (TPU) when he was ordered to active duty on 7 December 2003 in support of Operation Iraqi Freedom. He deployed to Iraq and Kuwait from 18 February 2004 to 11 February 2005 and on 13 March 2005 he was honorably released from active duty (REFRAD) due to completion of required service.
3. His records show that he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year letter) on 26 May 2004.
4. On 22 September 2006 the applicant was transferred to the USAR Control Group (Retired).
5. In the processing of this case a staff advisory opinion was obtained from the U.S. Army Human Resources Command, which opines that the applicant is not entitled to relief because the Post-9/11 GI Bill transferability program is based on legal authority outlined in law and information on the program was publicized well in advance of the implementation date of 1 August 2009. Individuals had to be serving on active duty or as a member of the Selected Reserve on or after
1 August 2009, which is a requirement established in law. However, the applicant was not on active duty or serving as a member of the Selected Reserve when the law went into effect. Accordingly, the applicant is not eligible to transfer his benefits. The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.
6. Public Law 110-252, section 3319, dated 22 June 2008, authorized the transfer of unused education benefits to family members. The law provided that the Secretary of Defense would prescribe the implementation of the program. It also provided that eligible participants must be serving as a member of the Armed Forces when the transfer is executed.
7. On 22 June 2009, the Office of the Under Secretary of Defense released Directive-Type Memorandum 09-003 Post-9/11 GI Bill which announced that individuals serving in the Armed Forces could affect a transfer of the GI Bill benefits effective 1 August 2009.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions have been noted. However, according to the applicable law and regulation, he is not eligible to transfer benefits under the Post-9/11 GI Bill transferability program. He transferred from the Selected Reserve to the Retired Reserve on 22 September 2006, well before the program went into effect on 1 August 2009. Unfortunately, there are no provisions in the law for retroactive eligibility that will allow him to transfer his benefits.
2. While it is certainly understandable that the applicant desires to transfer his benefits, he was not eligible to transfer his benefits when the program was implemented and there are no provisions to effect a transfer in the applicants case. To do so would afford him a benefit not afforded to others in similar circumstances. Accordingly, there appears to be no basis to grant his request.
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) AR20120003314
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20120003314
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2010 | 20100011813
He was on approved retirement transition leave from 19 June 2009 to 31 October 2009 when the final guidance was published which included the requirement to be on active duty to transfer benefits under the Post-9/11 GI Bill, chapter 33. 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...
ARMY | BCMR | CY2014 | 20140015550
The evidence shows the applicant was fully eligible to transfer his unused education benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement date of 12 September 2009. Therefore, as a matter of equity, his records should be corrected to show he made a timely application to transfer at least 1 month of his unused education benefits to his eligible dependents, in accordance with the TEB provisions of the Post-9/11 GI Bill, prior to his transfer to the Retired Reserve...
ARMY | BCMR | CY2012 | 20120006799
On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. 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. 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...
ARMY | BCMR | CY2011 | 20110019878
The applicant requests adjustment of the date he was transferred to the Retired Reserve so he can transfer educational benefits under the Transfer of Educational Benefits (TEB) provisions of the Post-9/11 GI Bill to his family members. The official stated the applicant's last day of service with the ARNG was 31 August 2010 but he did not transfer his benefit prior to this date. c. A Soldier may only transfer to eligible dependents.
ARMY | BCMR | CY2012 | 20120007756
The applicant requests adjustment of the date he was transferred to the Retired Reserve so he can transfer educational benefits under the Transfer of Educational Benefits (TEB) provisions of the Post-9/11 GI Bill to his family members. 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. However, as the applicant had been in the Selected Reserve (in the ARNG...
ARMY | BCMR | CY2014 | 20140012606
The applicant requests, in effect, correction of his records to show he elected to transfer education benefits to his dependent child under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. The applicant requests that he be allowed to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his dependent son. Since there is no evidence that shows the applicant attempted to transfer the benefit while in an active status, as required by...
ARMY | BCMR | CY2012 | 20120003158
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 dependents. The applicant had over 24 years of service upon his retirement so he was eligible to transfer the benefit to either his spouse or child if he had completed the request before he left the service. There is no evidence in his record and the applicant has not provided any evidence that shows he attempted to transfer benefits prior to...
ARMY | BCMR | CY2012 | 20120000807
He would have been eligible to transfer the benefits before he retired. The policy states 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. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the...
ARMY | BCMR | CY2012 | 20120008378
c. 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 benefits to eligible children. The applicant had more than 21 years of Reserve service upon retirement, but he was not eligible to transfer benefits to either his spouse or children because the law required a Soldier to be in the service on or after 1 August 2009. d. A Soldier may only transfer to eligible dependents. There...
ARMY | BCMR | CY2011 | 20110019271
The applicant requests correction of his records to show he is eligible to transfer his education benefits to his children under the Transfer Education Benefits (TEB) provision of the Post-9/11 GI Bill. The applicant states he read the 19 September 2011 edition of the Army Times which explained the Army Board for Correction of Military Records had ruled that Soldiers who retired during the period 1 August - 1 November 2009 may not have known the Post-9/11 GI Bill that took effect 1 August...