IN THE CASE OF:
BOARD DATE: 11 October 2012
DOCKET NUMBER: AR20120007382
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 correction of his records to show eligiblity to transfer his Post-9/11 GI Bill educational benefits to his family members.
2. The applicant states he was never informed of the requirements to transfer his educational entitlement while he was on active duty. He believes that after serving for 14 years in Desert Storm, Somalia, Operation Enduring Freedom, and Operation Iraqi Freedom, it is unfair for him not to be able to transfer is benefits to his family members. The provisions for the Transfer of Educational Benefits (TEB) were written before his separation but not implemented until 2 months after his separation and at no time was he advised of the program and its requirements.
3. The applicant provides no supporting documentation.
CONSIDERATION OF EVIDENCE:
1. With prior enlisted service in the U.S. Navy, the applicant enlisted in the Regular Army (RA) on 16 February 1999. On 17 June 1999, he was discharged for the purpose of accepting an appointment as a warrant officer. On 18 June 1999, he was appointed as a warrant officer with concurrent call to active duty.
2. On an undocumented date, the applicant submitted a request for an unqualified resignation under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 3, paragraph 3-5 (unqualified resignations). A Preseparation Counseling Checklist, dated 4 March 2008, shows his anticipated date of separation as 30 August 2008.
3. The applicant's request for an unqualified resignation was approved on 9 September 2008. He was given an effective date of discharge of 20 May 2009.
4. On 20 May 2009, the applicant was honorably discharged. He had completed 9 years, 11 months, and 3 days of net active service as a warrant officer with
4 years and 4 months of prior active enlisted service.
5. During the processing of this case, on 18 June 2012 an advisory opinion was obtained from the U.S. Army Human Resources Command (HRC) Chief, Education Incentives Branch. The advisor official outlined the applicant's service and the provisions for granting a transfer of benefits under Title 38 U.S. Code, Chapter 33 (Post-9/11 GI Bill). The official stated the applicant did not meet the requirements for a favorable recommendation. He was not on active duty at the time the TEB database was made operational (29 June 2009) or on the earliest effective date a Soldier could transfer benefits (1 August 2009). Additionally, had the applicant still been on active duty he would have incurred an additional
4 years of obligated service to enroll. Because the applicant's last day of service was before the implementation date he was and is not eligible for the TEB.
6. On 20 June 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.
7. Office of the Under Secretary of Defense Directive-Type Memorandum
09-003, dated 22 June 2009, established the policy and procedures for implementing Title 38 U.S. Code, Chapter 33 (Post-9/11 GI Bill). Included in the directive is the procedure for transferring educational benefits to eligible family members. The law states that any member of the Armed Forces (on active duty or Selected Reserve) serving on or after 1 August 2009, who is eligible for the Post-9/11 GI Bill can transfer their entitlement to their spouse or eligible child. The eligibility requirements include that a Soldier with at least 6 years but less than 17 years of active duty and/or Selected Reserve service on the date of approval, must agree to serve 4 additional years in the Armed Forces from the date of election.
DISCUSSION AND CONCLUSIONS:
1. The law providing for transfer of Post-9/11 educational benefits is very specific. A Soldier had to be in an active status on 1 August 2009 in order to take advantage of the transfer option.
2. The applicant had requested resignation and had been approved for separation 9 months prior to the date registration for the TEB program commenced and he was discharged over 2 months prior to the effective start date of program.
3. The applicant did not and does not meet the eligibility requirements for participation in the TEB program.
4. In view of the foregoing, there is no 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) AR20120007382
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ABCMR Record of Proceedings (cont) AR20120007382
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