IN THE CASE OF:
BOARD DATE: 24 January 2013
DOCKET NUMBER: AR20120013258
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 to transfer his education benefits to his dependents under the provisions of the Post-9/11 GI Bill Transferability Program before he was released from active duty on 30 September 2009.
2. The applicant states that he began his transition to retire from the Army on
1 July 2009 and he was never informed or made aware of the opportunity to transfer his benefits to his dependents before he retired on 30 September 2009.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his retiree recall orders.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving on active duty in the rank of colonel on 28 February 2006 when he was retired and he was transferred to the Retired Reserve effective 1 March 2006. He had served 21 years and 3 days of active service.
2. On 1 March 2006, he was recalled/ordered to active duty for 1,281 days and served until he was honorably released from active duty (REFRAD) on
30 September 2009 and he reverted to the Retired List effective 1 October 2009. He had served an additional 3 years and 7 months of active service.
3. In the processing of this case a staff advisory opinion was obtained from the Office of the Deputy Chief of Staff, G1 which recommends approval of the applicants request because he was separated within 90 days of the implementation of the program. The advisory opinion was provided to the applicant for comments and to date no response has been received by the staff of the Board.
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 Department of Veterans Affairs 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. 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. However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.
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 30 September 2009 has been carefully considered and is found to have merit.
2. 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. The applicant was recalled from the Retired Reserve and served on active duty after 1 August 2009. He left active duty on 30 September 2009 to revert to the Retired Reserve, within 90 days of the implementation of the program.
3. 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 30 September 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) AR20120013258
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