IN THE CASE OF:  

		BOARD DATE:  9 October 2012

		DOCKET NUMBER:  AR20120006802


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

2.  The applicant states:

* he should be allowed to transfer his educational benefits to his sons due to his present employment as a Junior Reserve Officers' Training Corps (ROTC) instructor being paid by the U.S. Army Cadet Command
* he is still required to maintain Army height and weight standards and moral standards as provided for in the Uniform Code of Military Justice
* as a retiree, he is still considered eligible for active service at the needs of the Army; therefore, he should be considered an active service member

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  On 10 November 1982, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty (MOS) 35K (Avionic Mechanic), later designated as MOS 68N.  On 8 November 1985, he was honorably released from active duty and transferred to the U.S. Army Reserve.

2.  On 19 November 1986, he again enlisted in the Regular Army.  He completed training and was awarded MOS 13M (Multiple Launch Rocket System/High Mobility Artillery Rocket System Crewmember).  He served in a variety of stateside, overseas, and combat assignments and attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On 31 March 2006, he was honorably retired and he was placed on the Retired List in the rank of SFC on 1 April 2006.  His DD Form 214 confirms he was credited with the completion of 22 years, 5 months, and 11 days of faithful and honorable service.

4.  On 21 May 2012, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army.  The advisory official did not recommend administrative relief because the applicant was not a member of the service on or after 1 August 2009, which is a requirement established by law.

5.  On 21 May 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; however, he did not respond. 

6.  On 22 June 2009, Department of Defense (DOD) established the criteria for the eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible individual is 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 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.

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

8.  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 applicant contends he should be granted an exception to policy to transfer his educational benefits under the provision of the TEB because he is employed as a Junior ROTC instructor, paid by the U.S. Army Cadet Command, and is still required to maintain certain Army standards.

2.  His contention is without merit because regardless of his current employment status, the evidence of record shows he retired from active duty on 31 March 2006.  Accordingly, he was not on active duty or in an active status as a member of the Selected Reserve on 1 August 2009.  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 was prior to 31 July 2009 and they would have transferred to the Retired List prior to 1 August 2009.

3.  In view of the foregoing, by law he is not eligible to transfer his educational benefits to his dependents under the TEB provisions 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)                                         AR20110007920



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ABCMR Record of Proceedings (cont)                                         AR20120006802



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