IN THE CASE OF:
BOARD DATE: 30 January 2014
DOCKET NUMBER: AR20130008822
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 an exception to policy to transfer educational benefits to his family members under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states that at the time of his retirement (30 April 2009) he was unaware that he would have been able to transfer his educational benefits to his dependents if he delayed the effective date of his retirement by 60 days (29 June 2009). If he had been aware of the loss of eligibility he would have delayed his retirement long enough to meet the eligibility requirements.
3. The applicant provides:
* DD Form 2366 (Veterans' Educational Assistance Act of 1984 (New GI Bill))
* Self-authored statement, dated 1 May 2013
* DD Form 214 (Certificate of Release of Discharge from Active Duty)
CONSIDERATION OF EVIDENCE:
1. The applicant retired from the Regular Army on 30 April 2009 due to sufficient service for retirement in the rank/grade of chief warrant officer three (CW3). He completed 20 years and 1 day of creditable active service.
2. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states 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 from 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.
3. 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.
4. 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 retired from active duty with 20 years and 1 day of active federal service on 30 April 2009. The law requires a member to be on active duty or in the Selected Reserve on or after 1 August 2009 at the time he or she requests the transfer. He was neither on active duty nor in the Selected Reserve at the time this program was implemented. Therefore, he is not eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his dependants.
2. His service and his sincerity are not in question. However, the requirements of this program are set in law and any changes to this law are not within the purview of this Board. There is neither an error nor an injustice in his case and, as such, he is not entitled to the requested relief.
3. Regrettably, in view of the foregoing there is no basis for granting the applicant's 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) AR20130008822
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ABCMR Record of Proceedings (cont) AR20130008822
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