IN THE CASE OF:
BOARD DATE: 8 November 2012
DOCKET NUMBER: AR20120008469
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, an exception to policy to transfer his educational benefits to eligible dependents under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.
2. He states he was not aware that he would have to transfer the benefits before leaving the service. This information was never brought to his attention. If he had been aware he would have made this transfer. He was honorably discharged from the service, not by choice, but due to injuries sustained during Operation Iraqi Freedom. He and his wife are 100 percent disabled and he would like to support his step daughter's goal to become a nurse practioner.
3. He provides copies of his retirement orders and a letter from the Department of Veterans Affairs.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show he was honorably retired from Massachusetts Army National Guard (MAARNG) on 20 June 2009. He was credited with completing more than 28 years and 3 months of net active service.
2. In an advisory opinion, dated 9 October 2012, the Chief, Personnel Policy Division, National Guard Bureau (NGB), recommended no administrative relief for the applicant. The NGB official stated:
a. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits wasn't implemented until 1 August 2009 rendering the applicant ineligible for the benefit. The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
b. The applicant requests an exception to policy in order to transfer his Post-911 GI Bill benefits which he claims he was unable to do as a result of not receiving proper counsel/advice at the time of his retirement.
c. Public Law 110-252 and its amendment, Public Law 111-377, identify the qualifying Title 10 and Tile 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill benefits. This law limits the transfer of unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
d. The applicant's last day of service with the ARNG was 20 June 2009. After a thorough review of his available records, they have determined that he was eligible for the Post-9/11 GI Bill, but not eligible to transfer the benefits per Public Law 111-377.
3. On 10 October 2012, he was provided a copy of this advisory opinion for acknowledgment and/or rebuttal. He did not respond.
4. 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 his records should be corrected to allow him to transfer his educational benefits to his eligible dependents under the TEB provision of the Post-9/11 GI Bill as an exception to policy.
2. The evidence of record shows he was honorably retired from the MAARNG on 20 June 2009 after completing more than 28 years of service. In order to transfer his educational benefits he was required to have been serving on active duty or a member of the Selected Reserve on or after 1 August 2009, which is a requirement established in the law. As his last date in service was 20 June 2009, he was not eligible to transfer educational benefits to his spouse, children, or step daughter. There is no evidence of record and he provided none to show he met all of the requirements established by law for transfer of educational benefits.
3. The applicant is commended for completing over 28 years of dedicated and honorable service; unfortunately, he left the service before 1 August 2009. Therefore, this incentive was not available to him at the time of retirement and it is still not available to him unless Congress changes the law.
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) AR20120008469
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