IN THE CASE OF:	  

		BOARD DATE:	 8 October 2013 

		DOCKET NUMBER:  AR20130013353 


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 her family members under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states she would have welcomed the opportunity to continue to serve in an active duty status had she not been non-selected for promotion twice. She also states that her children made incredible sacrifices and the injustice of denying them the opportunity to use her Post-9/11 GI Bill education benefits should be rectified. 

3.  The applicant provides:

* Numerous Officer Evaluation Reports
* Numerous awards and decorations certificates and/or orders
* Emails
* Memorandum, Subject:  Request Clarification of Current Military Service Obligation (MSO) Exception to Policy, or Adjustment of GI Bill . . . , dated 14 December 2012
* Memorandum, Subject:  Request for Implementation of the Proposed Policy to Allow Officers Who are Twice Non-Selected for Promotion to Colonel (COL) to have the 4-year MSO Shortened if They Seek to Retire, dated 29 January 2013
* Post 911 GI Bill Frequently Asked Questions
* Memorandum, Subject:  Request for Voluntary Retirement, dated
6 December 2012
* Milconnect Transfer of Education Benefits

CONSIDERATION OF EVIDENCE:

1.  She was commissioned as a second lieutenant in the Regular Army on 5 July 1993.  She was promoted to lieutenant colonel on 15 June 2006 with a mandatory removal date (MRD) of 1 August 2021.

2.  The Milconnect TEB online database shows she requested to transfer her education benefits to her children with a beginning date of 22 February 2010 for one child and 12 July 2010 for the other child.  Her request was approved and her status date was listed as 26 February 2010 with an obligation end date of
21 February 2014.

3.  On 6 December 2012, she voluntarily requested to be released from active duty effective 31 July 2013 and placed on the retired list effective the following day.  In her request, she stated that she transferred Post 9/11 GI Bill benefits to her eligible family members and her MSO ends on 2 February 2014.  

4.  On 14 December 2012, the applicant requested that the U.S. Army Human Resources Command (HRC), Education Incentives Branch, clarify her current MSO for vesting of the TEB provision of the Post-9/11 GI Bill to her dependents.  She explained that she was a two time non-select for promotion to colonel and her retirement date was 1 August 2013.

5.  In an email, dated 8 January 2013, the Finance and Incentive Team, HRC, responded to the applicant's question concerning TEB.  The representative said based on the applicant's basic active service date of 2 July 1993, she had 
16 years of service as of 1 August 2009.  Therefore, the 4-year active duty service obligation (ADSO) of 21 February 2014, from the date of her TEB
(22 February 2010) was correct. 

6.  On 18 January 2013, the Army Retention Noncommissioned Officer, Deputy Chief of Staff G-1, responded to the Judge Adjutant General's (JAG) question concerning whether there was a movement to allow two time non-select officers to have their 4-year MSO shortened if they seek to retire.  The representative said a new draft policy was currently being worked and one of the topics for discussion was two time non-select officers.  He added that non-selection of officers was not considered a "reduction in force" tool which was authorized by law to forgive the ADSO.

7.  An email dated 24 January 2013 from the JAG office to the applicant explained that HRC returned her request for retirement because there was an ADSO on the 9/11 GI Bill TEB action.

8.  In a memorandum to the Deputy Chief of Staff G-1, dated 29 January 2013, the applicant requested, in effect, implementation of a proposed policy change to waive the 4-year ADSO for officers who were a two time non-select for promotion to COL, thereby allowing them to retire and keep their TEB under the Post 9/11 GI Bill. 

9.  The HRC Integrated Web Services of the applicant's Army Military Human Resource Record (AMHRR) provides a transaction history and/or information requested by the applicant.  The "Remarks" section of this site stated the applicant's request to revoke the transfer of her benefits was completed.  The information was updated in the Milconnect website and her ADSO was removed in the Total Officer Personnel Management Information System. 

10.  The applicant was honorably retired on 31 July 2013 and credited with completing 20 years and 26 days of active duty service.

11.  On 20 September 2013, a representative from the Deputy Chief of Staff G-1, Post 9/11 GI Bill Policy, stated that on 6 February 2013, the applicant revoked her TEB so she could retire the date she voluntarily requested.  Her two time non-select status in this case did not apply since she was not mandatorily discharged.  

12.  Department of Defense (DoD) Directive-Type Memorandum (DTM) 09-003, dated 22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  It defines eligibility as: 
   
   a.  Any Soldier of the Armed Forces who fulfills Post 9/11 GI Bill eligibility requirements and who at the time of the approval of the Soldier's request to transfer entitlement to education assistance does not have an adverse action flag, is eligible for the Post 9/11 GI Bill; and
   
   b.  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

	c.  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
	d.  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 service or 20 qualifying years of Reserve service.

13.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active service 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant applied to transfer her educational benefits to her dependents on 22 February 2010.  Therefore, in accordance with the DoD DTM, as cited above, she incurred a 4-year ADSO until 21 February 2014.  The evidence of record shows she was well aware of this requirement and could have fulfilled her ADSO since her MRD was not until 2021.  However, she elected to revoke her TEB and retire on her voluntary retirement date of 31 July 2013.

2.  There are no provisions under the TEB that allow the 4-year ADSO to be waived simply because the Soldier was passed over twice and no longer wants to remain in the service.  In view of the above, her request should be denied.

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)                                         AR20130013353



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130013353



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1