IN THE CASE OF:
BOARD DATE: 13 December 2012
DOCKET NUMBER: AR20120006483
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 children.
2. The applicant states he was not informed of his eligibility to transfer his education benefits to his children when he was part of the Wounded Warrior Program or during his discharge processing.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).
CONSIDERATION OF EVIDENCE:
1. Having had prior Reserve and active duty service, the applicant's records show he enlisted in the Army National Guard (ARNG) on 14 April 1994. He served in staff and leadership positions and he attained the rank/grade of sergeant first class (SFC)/E-7 on 9 December 2004.
2. He was ordered to active duty as a member of his ARNG unit in support of Operation Iraqi Freedom and he entered active duty on 7 June 2007.
3. On 12 March 2009, he was honorably released from active duty in the rank of SFC, by reason of disability.
4. On 11 June 2009, he was honorably discharged from the ARNG and transferred to the Retired Reserve. He completed 22 years, 2 months, and 4 days of total service for retired pay.
5. In the processing of this case, an advisory opinion was received from the Chief, Personnel Programs Division, NGB, on 9 October 2012. The advisory official recommended disapproval of the applicant's request and stated that Public Law 110-552 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits and limited eligibility to members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. As the applicant's last day of service with the ARNG was 11 June 2009, he was never eligible to transfer his benefits to his children.
6. On 10 October 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.
7. On 22 June 2009, Department of Defense (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 (active duty 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 active duty or 20 qualifying years of Reserve service.
8. 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 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.
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 active duty and serve on or after 1 August 2009 and before 2 August 2012.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests transfer of his Post-9/11 GI Bill educational benefits to his children under TEB. However, the program was not implemented until July 2009 and the law required a person to be on active duty or serving as a member of the Selected Reserve on or after 1 August 2009 in order to be eligible. He was released from active duty on 12 March 2009 and discharged the ARNG on 11 June 2009.
2. As such, he was ineligible to transfer his educational benefits to his children; therefore, there is no basis for granting his 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) AR20120006483
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