IN THE CASE OF:
BOARD DATE: 13 December 2012
DOCKET NUMBER: AR20120009421
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 provisions of the Post-9/11 GI Bill to his dependents.
2. He states he was not aware of the TEB requirements when he retired from the Army in December 2006. He would like this to be corrected so he may be able to transfer his chapter 33 entitlements to his daughter, who will be attending the University of North Carolina.
3. He provides no additional documents.
CONSIDERATION OF EVIDENCE:
1. The applicant retired on 31 December 2006 in the rank of staff sergeant/E-6 upon completion of sufficient years of service.
2. During the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, which 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 his education benefits to his dependents under the provisions of the Post-9/11 GI Bill 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 TEB online database shows the applicant had no eligible dependents to transfer because he was not in the service on or after 1 August 2009. This incentive was not available to him because the program was not yet implemented.
e. The applicant's last day in military service was 31 December 2006 which was prior to the program's implementation.
3. On 17 October 2012, 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 within the allotted timeframe.
4. 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.
5. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions regarding his entitlement to transfer his education benefits to his daughter under the provisions of the Post-9/11 GI Bill are acknowledged.
2. However, since he retired on 31 December 2006 which is prior to implementation of the Post-9/11 GI Bill, he is not eligible to transfer benefits to family members under this program.
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) AR20120009421
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ABCMR Record of Proceedings (cont) AR20120009421
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