IN THE CASE OF:	  

		BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120003475 


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 an exception to policy to transfer educational benefits to his dependents under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  He states:

* he was directed by the Department of Veterans Affairs (VA) to contact the Army Board for Correction of Military Records (ABCMR)
* he retired on 30 April 2007 but was recalled to active duty (AD) in 2009 for a 1-year period
* in January 2010, he applied to transfer his educational benefits to his son on the Department of Defense (DOD) website at the education center at Fort Meade, MD
* the only confirmation he received at the time was a screenshot of the submission which he no longer has
* when he called 1-800-872-8272 to check the status of his request, he was told there was no record of his submission
* he would like to reapply to transfer his benefits as this is the only means he can afford to send his son to college

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 March 2010
* AD orders

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 24 September 1957.

2.  Having prior service in the Regular Army, he enlisted in the Army National Guard (ARNG) on 18 April 1996.  He served on AD in the ARNG Active Guard Reserve (Title 32) from 5 January 2005 through 30 April 2007.  He was placed on the Retired List in the rank of sergeant first class.  He completed over 23 years of active service.

3.  He provided a copy of U.S. Army Human Resources Command 
Orders M-02-902039, dated 5 February 2009, that show he was ordered to AD in a retired status for a period of 1 year effective 10 March 2009.

4.  The applicant also provided a DD Form 214 which shows he was released from AD and transferred to the Retired List on 9 March 2010.

5.  On 11 April 2012, an advisory opinion was obtained from the Chief, Education and Incentive Branch, Fort Knox, KY, in the processing of this case.

	a.  The advisory official recommended disapproval of the applicant's request unless he could provide evidence showing he attempted to transfer benefits prior to leaving military service and/or he was given false information by a reliable source about the rules of transferring educational benefits.  The applicant's last day in military service was 9 March 2010.  He would have been eligible to transfer the benefits if he done so before he left military service.  However, he did not complete the requirements in the TEB online database because he claimed he was not aware of the requirement to transfer benefits prior to leaving the military.

	b.  The applicant states he completed an application with the Fort Meade education office in January 2010, but the Defense Manpower Data Center audited his record and found no history of a request to transfer benefits on the TEB online database.  Therefore, no action was taken by the applicant to transfer any benefits.

6.  The applicant was provided with a copy of this advisory opinion and he responded via email on 19 April 2012.  He asked what type of proof can he provide other than the visit he had at the Fort Meade education center in January 2010?  He stated he would try to come up with some kind of proof, God willing, but all he has is his integrity.  He would try to research the matter in more detail and would respond prior to the time allotted.  He responded by telephone on 17 May 2012 that he had no additional documentation to support his request.

7.  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 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 Component service.

8.  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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

9.  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.  However, the policy does apply to those so retired if they are recalled to AD and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  He contends he applied to transfer his educational benefits to his dependents under the TEB provision of the Post-9/11 GI Bill on the DOD website while visiting the Fort Meade education office in January 2010.

2.  The applicant's last day in military service as a retiree recall was 9 March 2010.  He would have been eligible to transfer the educational benefits before he left the service; however, an audit of his record found no history of a request to transfer these benefits on the TEB online database.

3.  There is no evidence and he has not provided a sufficient argument to show he exercised due diligence or took all necessary steps to ensure the transfer of his educational benefits to his dependent during the period he was eligible.

4.  Unfortunately, in view of the foregoing evidence he is not entitled to the 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 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)                                         AR20120003475



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ABCMR Record of Proceedings (cont)                                         AR20120003475



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