BOARD DATE:  16 May 2013

		DOCKET NUMBER:  AR20120017702 


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 correction of his records to show he elected to transfer his educational benefits to his spouse under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

	a.  In June 2012, he and his spouse requested information to transfer his educational benefits to his spouse from the Career Counselor at the Warrior Training Brigade (WTB), San Antonio Military Medical Center.  They were informed that he could not transfer the benefits because he did not have 10 years of service.

	b.  On 1 August 2012, he had approximately 6 years and 2 months of active service and approximately "2 years [sic]" as a drilling Reservist according to his DD Form 214 (Certificate of Release or Discharge from Active Duty).

	c.  On 6 September 2012, the WTB Career Counselor told him he could not transfer his benefits because he had between 6 and 10 years of service and had received a medical board decision to separate.  When the applicant requested a copy of the policy stating he could not request transfer of his benefits after receipt of his medical board decision to separate, the career counselor stated it was an internal memorandum and could not be distributed.

	d.  Had he known all the rules, he would have elected to transfer his educational benefits in June 2012.  Not only did the career counselor provide the wrong information that the applicant had to have 10 years of service to transfer the benefits, he withheld the information that once he had 6 years he could have requested an exception to policy to transfer the benefits.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  On 17 January 2007, the applicant enlisted in the Regular Army and he retired due to permanent disability on 24 October 2012 in the rank of specialist.  His DD Form 214 shows he completed 4 years, 5 months, and 18 days of net active service during the period covered by the DD Form 214 with an additional 4 months and 17 days of prior active service and 7 years, 7 months, and 24 days of prior inactive service.

2.  In 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, Headquarters, Department of the Army.  The advisory official recommended denial of administrative relief.  The advisory official noted the applicant was not authorized to transfer his Post-9/11 GI Bill benefits because he would have incurred a 4-year service obligation upon his TEB request.  He did request to transfer his benefits before leaving military service, but he did not commit to the service obligation.  He required an exception to policy to be able to commit to the service obligation.  His request to transfer his benefits was submitted via the MilConnect website on 17 July 2012 and he was counseled by his approving official on two separate occasions prior to receiving separation orders on 6 August 2012.  The exception to policy to serve an additional 4 years was not requested or processed.  Once separation orders were issued he was no longer eligible by law to commit to the additional service obligation.

3.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him an opportunity to submit comments or a rebuttal.  No response was received.

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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

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 for administration of the program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests transfer of his Post-9/11 GI Bill educational benefits to his spouse.  He states he was not properly informed regarding transferring educational benefits prior to his retirement.

2.  The available evidence shows the applicant retired due to disability effective 24 October 2012.  The advisory official noted the applicant would have incurred a 4-year service obligation upon his request to transfer the benefits.  Further, he required an exception to policy to be able to commit to the additional service.  His request to transfer his benefits was submitted via the MilConnect website on 17 July 2012 and he was counseled by his approving official on two separate occasions prior to receiving separation orders on 6 August 2012.  Once separation orders were issued he was no longer eligible, by law, to commit to the service obligation.  An exception to policy to serve the additional obligation was not requested and/or processed.


3.  Notwithstanding the advisory opinion, there is no evidence showing the applicant was counseled concerning the transfer of his benefits to his spouse.  

4.  As there is evidence that the applicant did attempt to transfer the benefits to his spouse, and there is no evidence he was counseled on his need to submit an exception to policy to commit to the additional service, it would be appropriate to correct his records to show he submitted an exception to policy to commit to the additional service and the request was granted.  

5.  In view of the above, the applicant's request should be granted.

BOARD VOTE:

__X___  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 submitted a request for exception to policy to commit to an additional 4 years of service in a timely manner, the request was granted, and that the Army approved his request to transfer Post-9/11 GI Bill benefits to his spouse, provided all other program 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)                                         AR20110007920



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ABCMR Record of Proceedings (cont)                                         AR20120017702



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