IN THE CASE OF:
BOARD DATE: 27 November 2012
DOCKET NUMBER: AR20120009043
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 approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to his dependents.
2. He states he was placed on the Temporary Disability Retired List (TDRL) on 23 March 2008 and was permanently retired on 10 October 2010. He states that throughout his transition, he wasn't informed of the requirement to transfer the Post-911 GI Bill entitlement while he was still in the service.
3. He provides his retirement orders, letter from the U.S. Army Physical Disability Agency, and Department of Veterans Affairs (VA) New Orleans Regional Office Rating Decision. He indicates he provided VA medical records; however, these documents are not available.
CONSIDERATION OF EVIDENCE:
1. The applicant was released from duty on 23 September 2008 as a member of the Selected Reserve in the rank/pay grade of sergeant first class (SFC)/E-7 and was placed on the TDRL.
2. Orders D294-16, dated 21 October 2010, removed the applicant from the TDRL on 21 October 2010 and permanently retired him.
3. He provided a copy of his VA Rating Decision, dated 8 November 2011, which indicates he was granted entitlement to individual unemployability, effective 19 January 2011, and basic eligibility to Dependents' Educational Assistance which was established from 19 January 2011.
4. During the processing of this case, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, on 26 June 2012, who states:
a. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. 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 is not eligible to transfer benefits under the Post-9/11 GI Bill Transferability Program to his dependents because he was not on active duty or a member of the Selected Reserve on or after 1 August 2009 which is a requirement established in law.
c. the advisory official recommended denial of the applicant's request.
d. the applicant's last day in the Selected Reserve, prior to being placed on the TDRL, was 22 September 2008, which was prior to the program's implementation.
5. On 29 June 2012, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. As of 30 July 2012, he had not responded to the advisory opinion.
6. On 22 June 2009, the Department of Defense (DOD) established the criteria for 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions regarding his entitlement to transfer of TEB under the Post-9/11 GI Bill to his dependents are acknowledged.
2. However, since he was medically retired on 22 September 2008, which is prior to the implementation of the Post-9/11 GI Bill TEB Program, he is not eligible to transfer benefits under the program to his dependents.
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.
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