IN THE CASE OF:
BOARD DATE: 26 March 2014
DOCKET NUMBER: AR20130012288
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 reconsideration of his earlier request for amendment of his date of retirement to some point after 1 August 2009 to allow him to take advantage of the Post-9/11 GI Bill Transfer of Education Benefits (TEB) Program. In effect, he requests an exception to the law requiring mandatory removal from an active status at age 60.
2. The applicant states:
a. His request for an extension beyond his mandatory separation date to deploy with his unit was not denied as stated in the consideration of evidence section of his original Army Board for Correction of Military Records (ABCMR) Record of Proceedings. His request for retention was approved to deploy with his unit by the State Adjutant General on 28 April 2009.
b. He indicates the original ABCMR Record of Proceedings incorrectly references Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfer) by stating that an enlisted Soldier is to be removed from an active status and discharged, transferred to the Individual Ready Reserve, or transferred to the Retired Reserve at the age of 60. He points out that this regulation also states a Soldier can be retained with a waiver from The Adjutant General for the State of Virginia to be extended beyond age 60 for 1 year at a time, up to age 64. This regulation is just a guideline and not law.
c. He states paragraphs 1, 2, 4, and 5 of the discussion and conclusions section of the ABCMR Record of Proceedings are incorrect. He never received a pre-retirement briefing at anytime while serving on active duty.
d. In November 2012, The Virginian-Pilot published articles that stated many veterans' benefits were a mystery. The Department of Veterans Affairs (VA) said it has taken steps in recent years to boost benefits awareness. They want to accept veterans into the VA and help them. A new law mandates that all departing service members go through a series of detailed benefits sessions. Until then, participation in such sessions varied by service and was often not done or optional.
e. The State retirement officer for the Virginia Army National Guard (VAARNG) at Fort Pickett told him he could have been extended for 30 more days beyond his retirement date to complete any unfinished business with his unit to make sure all his paperwork was correct. If he had known about the 1 August 2009 starting date for the Post-9/11 GI Bill TEB Program, he would have requested to stay until his next drill sometime in August.
3. The applicant provides a letter from a Member of Congress, dated 6 June 2013.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120001363 on 20 September 2012.
2. The applicant's arguments are new evidence that will be considered by the Board.
3. The applicant was born on 24 July 1949. Having prior active service in the Regular Army, he enlisted in the VAARNG on 19 September 1984. He was promoted to master sergeant on 1 June 2007.
4. On 11 February 2008, he requested an extension beyond his mandatory separation date in order to deploy with his unit.
5. On 8 March 2009, his unit requested an extension of the applicant's mandatory separation date beyond his mandatory retirement age to allow him to deploy with his unit in support of Operation Iraqi Freedom. On 28 April 2009, the State Adjutant General approved the request.
6. On 4 May 2009, he requested retirement from the VAARNG effective 24 July 2009.
7. VAARNG Orders 212-005, dated 31 July 2009, show he was honorably discharged from the ARNG and transferred to the Retired Reserve effective 24 July 2009.
8. He provided a letter from the VAARNG Military Personnel Officer/G-1, dated 29 January 2013, which states:
a. In response to the applicant's request, that office reviewed their files related to his discharge and transfer to the Retired Reserve effective 24 July 2009 and his request to be retained beyond age 60 in order to mobilize and deploy to Iraq with his unit.
b. Their records indicated that although the applicant was otherwise fully qualified for deployment, his mandatory separation date at age 60 made him ineligible for the mobilization which was scheduled for 16 March 2009. Army regulations require enlisted Soldiers to be separated at age 60 unless retained by proper authority. His unit wanted him to be available as an alternate and recommended approval of his request for retention beyond age 60 in case he was needed for the deployment. The request was endorsed by his battalion and brigade commanders in March 2009. Both cited potential mobilization as the basis for the request.
c. His request for retention was approved by the State Adjutant General on 28 April 2009, stating potential mobilization as the basis for the approval. Unfortunately, by the time the State Adjutant General approved the request, his unit had nearly completed its post-mobilization training and was preparing to deploy. Since there was no requirement for a replacement, the original basis for retention beyond age 60 was no longer valid and no further action was taken on the request.
d. VAARNG Orders 212-005 were published on 31 July 2009 transferring the applicant to the Retired Reserve effective 24 July 2009, which was his 60th birthday.
9. A memorandum for record from his unit Readiness NCO, dated 18 August 2011, stated the VAARNG did not have a retirement briefing program at the time of the applicant's retirement.
10. National Guard Bureau Policy Memorandum 06-070, dated 3 November 2006, subject: Enlisted Service Beyond Age 60 Waiver Requests, in effect at the time, stated extensions for Soldiers beyond age 60 would be facilitated through a waiver process. State Adjutants General could approve waivers for 2 years beyond age 60. Extensions beyond age 62 required submission to the National Guard Bureau for approval.
11. 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 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.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record supports the applicant's contention that his request for an extension beyond his mandatory separation date to deploy with his unit was not denied. Records show the State Adjutant General approved his request on 28 April 2009, stating potential mobilization as the basis for the approval. Unfortunately, by the time the State Adjutant General approved the request, his unit had nearly completed its post-mobilization training and was preparing to deploy. Since the original basis for retention beyond age 60 was no longer valid, no further action was taken on the request.
2. In May 2009, he requested retirement from the VAARNG effective 24 July 2009. He was honorably discharged from the ARNG and transferred to the Retired Reserve effective 24 July 2009.
3. There is no evidence his request for retention beyond age 60 and his subsequent discharge from the VAARNG and transfer to the Retired Reserve were in error. Therefore, there is insufficient evidence on which to base granting his request to change his date of retirement to some point after 1 August 2009.
4. The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. Since he retired on 24 July 2009 prior to implementation of the Post-9/11 GI Bill TEB Program, he is not eligible to transfer benefits to his dependents under this program.
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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120001363, dated 20 September 2012.
______________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) AR20130012288
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ABCMR Record of Proceedings (cont) AR20130012288
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