IN THE CASE OF:
BOARD DATE: 30 April 2013
DOCKET NUMBER: AR20120017834
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 transfer of his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his son.
2. The applicant states he retired just a few months after the program came out and he was not advised about his eligibility to transfer his education benefits. He was just recently advised by the Army National Guard (ARNG) Post-9/11 education specialist that Soldiers who left the ARNG after 1 August 2009 may be eligible for the transfer of education benefits relief from the Army Board for Correction of Military Records (ABCMR).
3. The applicant provides:
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* two 20-Year Letters
* an ARNG Current Annual Statement
* two DA Forms 4187 (Personnel Action)
* a Memorandum for Record, subject: Request for Retirement for (Applicant's name and social security number), dated 11 September 2009
CONSIDERATION OF EVIDENCE:
1. Having had prior Reserve service, the applicant enlisted in the Indiana ARNG (INARNG) on 17 July 2000 and he held military occupational specialties 11B (Infantryman) and 11H (Heavy Anti-Armor Weapons Infantryman).
2. He was ordered to active duty in support of OEF as a member of his ARNG unit and entered active duty on 9 March 2009.
3. On 26 August 2009, by memorandum, the INARNG issued the applicant a
20-Year Letter. This memorandum notified him that he had completed at least 20 years of qualifying service and he would be eligible for retired pay upon application at age 60.
4. He was honorably released from active duty on 1 December 2009 to the control of the INARNG. He completed 8 months and 23 days of creditable active service during this period of service.
5. He was honorably released from the INARNG on 2 December 2009 and he was transferred to the Retired Reserve on 3 December 2009. The NGB Form 22 he was issued shows he completed 20 years, 7 months, and 1 day of total service for retired pay.
6. It is not known how many eligible family members the applicant had enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) prior to his separation date.
7. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible family member 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 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.
8. A member of the Armed Forces is eligible to transfer education benefits to family members if they:
a. have eligible family members enrolled in DEERS. Children lose eligible family member status upon turning 21 years of age, or at marriage. Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried; and
b. initially requests the transfer through the DOD TEB online database. This database was operational on 29 June 2009. Once approved in the TEB database, the information is automatically relayed to the Department of Veterans Affairs (VA). Once the benefits are transferred, children may use the benefit up to the age of 26.
9. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was serving as a member of the ARNG on active duty until he was released from active duty on 1 December 2009. His last day of service in the Selected Reserve was 2 December 2009, 158 days after the TEB database was operational and 146 days after the Army released the Post-9/11 GI Bill Implementation Policy. He would have been eligible to transfer any unused education benefits to any eligible family members enrolled in DEERS; however, he did not do so while he was serving in the ARNG.
2. Notwithstanding his sincerity, the DOD, VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria.
3. The requirement to transfer the benefits while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board. The applicant simply failed to transfer the benefits to his eligible family members while in an active status as required by law.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting him the requested relief.
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) AR20120017834
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ABCMR Record of Proceedings (cont) AR20120017834
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