IN THE CASE OF:	  

		BOARD DATE:	  12 March 2014

		DOCKET NUMBER:  AR20130012120 


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, an exception to policy to transfer educational benefits to her youngest daughter under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill. 

2.  The applicant states she requested to have her Post 911 Education Benefits transferred to her youngest daughter 10 days after she was forced to transfer to the Retired Reserve.  She was forced to retire because her Mandatory Removal Date (MRD) extension request was returned without action.  She is a dual status military technician and is now being removed from her civilian job as well because she was not granted an extension.  Additionally, she was given short notice; her retirement orders that normally take 6 months were published in          4 days. 

3.  The applicant provides copies of email regarding her transfer, MRD extension request denial, and a DD Form 214 (Certificate of Release or Discharge from Active Duty. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was promoted to the rank of lieutenant colonel in the U.S. Army Reserve (USAR) on 30 June 2005 and she was issued a 20-Year letter on
22 March 2007.

2.  On 6 May 2013, a memorandum was dispatched from the Office of the Chief, Army Reserve advising the applicant that her request for retention past her MRD was being returned without action and that she would be removed from Selected Reserve Status and transferred to the Retired Reserve effective 1 June 2013.  She also advised that she would be removed from her Military Technician position no later than 1 June 2014.

3.  The email provided by the applicant show she was advised that there were no provisions to allow her transfer of military education benefits after she had been removed from Selected Reserve Status and advised her to apply to 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 that went into effect on 1 August 2009.

5.  Public Law 110-252 and Department of the Army, G1 Post 9/11 GI Bill Policy, dated 10 July 2009, provides that a veteran may modify entitlements or revoke entitlements among only those dependents that were designated to receive transferred benefits prior to separating from the Armed Forces.  Veterans who transferred entitlements prior to separation or retirement from the Armed Forces may not add new family members after separation or retirement. 

6.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute 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 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, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

7.  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; and

	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required.

DISCUSSION AND CONCLUSIONS:

1.  The laws and policies governing the TEB provide that service members must make a TEB election prior to separation from the service.

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.  Specific guidance on the requirement to apply for the benefit prior to leaving military service was not fully available to members who transitioned within the first 90 days after implementation of the program on 1 August 2009.

3.  However, the applicant retired well outside the first 90 days of implementation of the program (3+ years).  

4.  Notwithstanding the short notice between the time her request for MRD extension was disapproved and the time her orders were issued, she knew her MRD was coming up.  Especially in today’s drawdown period, she failed to be pro-active by transferring educational benefits to her daughter prior to requesting retention based on the possibility her request would not be approved.

5.  Therefore, in the absence of evidence to show that she was advised that she did not have to apply to receive her TEB while she was still serving, there is an insufficient evidentiary 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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of her service in arms.



      _____________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)                                         AR20130012120



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ABCMR Record of Proceedings (cont)                                         AR20130012120



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