IN THE CASE OF:
BOARD DATE: 24 January 2013
DOCKET NUMBER: AR20120013097
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, correction of his records to show he applied for the Post-9/11 GI Bill Transferability Program to transfer his education benefits to his dependents before he was released from active duty on 31 August 2009.
2. The applicant states that he was serving in Korea when he retired and was never given the opportunity to transfer his education benefits to his dependents.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his DA Form 31 (Request and Authority for Leave), and copies of emails to and from the Office of the deputy Chief of Staff, G1.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 24 August 1989. He completed his training and continued to serve through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 1 May 2001. He served in Saudi Arabia during the period of 19901218 19910420 and in Kuwait during the period of 20031027 20040822.
2. The applicant was serving in Korea when he departed on permissive temporary duty (PTDY) and terminal leave on 14 June 2009.
3. He remained on terminal leave until he was honorably released from active duty on 31 August 2009 and was transferred to the Retired List effective 1 September 2009. He had served 20 years and 7 days of active service.
4. The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public
Law 110-252, House of Representatives, 2642. In July of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.
5. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members. A service member may execute the transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. General eligibility criteria are as follows:
a. Service members must have accrued specific qualifying active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.
b. Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.
6. The program guidance stipulates that if a service member becomes retirement eligible during the period beginning on 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents. A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732:
a. service members eligible for retirement on 1 August 2009 no additional service required;
b. service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 no additional service required;
c. service members eligible for retirement after 1 August 2009 and before 1 August 2010 1 year of additional service is required;
d. service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 2 years of additional service is required;
e. service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 3 years of additional service is required; and
f. active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that his record be corrected to show he applied for and the Army approved transferring his education benefits under the Post-9/11 GI Bill to his dependents prior to his retirement on 31 August 2009 has been carefully considered and is found to have merit.
2. The available evidence shows that the applicant was on PTDY and terminal leave when the transfer of Post 9-11 GI Bill education benefits was implemented and when he retired.
3. The Post-9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level. However, it appears the applicant was not advised of the provisions for transfer of his education benefits before he retired.
4. Therefore, given the circumstances in this case, it would serve the interest of equity to correct his record to reflect he applied to transfer his education benefits under the Post-9/11 GI Bill transferability provision prior to his retirement on 31 August 2009.
BOARD VOTE:
____X___ ____X___ ___X__ _ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer Post-9/11 GI Bill education benefits to his dependents prior to retirement, provided all other eligibility criteria are met.
_______ _ 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) AR20120013097
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