IN THE CASE OF:	  

		BOARD DATE:	  4 September 2014

		DOCKET NUMBER:  AR20140001063 


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 authorization to participate in the Transfer of Educational Benefits (TEB) program.

2.  The applicant states - 

* at no time while on active duty or prior to his retirement was he informed that he must be on active duty to transfer his Post-9/11 GI Bill educational entitlement to his dependents 
* he was not afforded the opportunity to make a TEB election while on active duty due to a lack of notice, which results in the injustice of his forfeiture of his eligibility to transfer his Post-9/11 GI Bill educational benefits to his spouse
* due process was denied him in that he had less than twenty-four hours to process his separation and retirement from active duty in that he was not afforded the opportunity to undergo mandatory separation process
* he was not provided the mandatory pre-separation counseling and assistance upon retiring with over 35 years of qualifying service from the Armed Forces, such counseling and assistance would have been prudent and informative in providing notice to transfer his entitlement under the Post-9/11 GI Bill while on active duty
* has an eligible spouse who is preparing to pursue a doctorate degree and transferring his unused education benefits to his spouse will provide the much needed financial assistance to help her through her doctorate program and eliminate the need for a large financial student loan debt.

3.  The applicant provides copies the following marked as –

* Attachment 1 - a 5 January 2014 letter from his spouse on her intent to attend a Doctoral Program
* Attachment 2 - 14 August 2013 letter from Adam Axxx, Deputy Director, Office of Congressional and Legislative Affairs' Liaison Service, U.S. Department of Veterans Affairs
* Attachment 3 - a 17 September 2013 letter from A. Sxxx, Education Officer, Atlanta Regional Office, Department of Veterans Affairs
* Attachment 4 - 17 October 2013 letter from Donna Wxxx, Chief Congressional Inquires, National Guard Bureau (NGB)
* Attachment 5 - 29 July 1912 NGB Form 22 (Report of Separation and Record of Service) 
* Attachment 6 - 13 June 2002 DD Form 214
* Attachment 7 - a 4 March 2010 NGB appointment memorandum  
* Attachment 8 - Office of the Adjutant General Orders 194-842, dated 1 July 2010
* Attachment 9 - Army National Guard (ARNG) Retirement Point History Statement
* Attachment 10 - Office of the Adjutant General Orders dated 20 April 2001 ordering the applicant to active duty to attend U.S. Army War College Resident Course

CONSIDERATION OF EVIDENCE:

1.  With prior service, it appears he was commissioned on or about 27 March 1982.

2.  The applicant was promoted to Major General effective 2 August 2011.

3.  The applicant reports that he was on active duty in a Title 10 status from 12 July 2001 through 13 June 2002 while attending U.S. Army War College and again as again as a dual hatted Soldier in the positions of Deputy Commander and Director of Intelligence for NGB from 13 March 2009 through 29 July 2012.

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.  

5.  The 4 March 2010 NGB appointment memorandum states the applicant was notified of his selection as the Director, J-2/6 effective 1 July 2010 for two years in a dual-hat status.  Neither this memorandum nor the accompanying orders indicate his component of service for this duty.
6.  The applicant reports that he was released from duty and retired due to a reduction in budget spending.  This resulted in his being out-processed in a single day without any pre-separation counseling or assistance.  

7.  The NGB Form 22, dated 29 July 2012, as provided by the applicant provides the following –

* service in the Army/Army National Guard of the United States (ARNGUS)/GAARNG
* net service this period – 35 years and 20 days
* prior Reserve service – 1 month and 3 days
* prior active Federal Service – 2 years, 2 months, and 24 days
* total service for pay – 37 years, 4 months, 17 days
* total service for retirement pay – 35 years, 5 months, and 20 days
* transfer to the Retired Reserve
* Authority and reason for separation National Guard Regulation 635-100, paragraph 5a(2)(b)
* the applicant was not available to sign his separation document

8.  ARNG Retirement Point History Statement shows the applicant had 35 years, 5 months, and 20 days of creditable service for retired pay.  The Military Membership Status Identifier for his service for the period from 13 March 2002 through 29 July 2012 was a B1 (Army National Guard Unit Member).  For the 5 retirement years prior to his separation, he earned active duty points as follows – 

* 2007 – 63 points 
* 2008 – 58 points 
* 2009 – 100 points  
* 2010 – 139 points  
* 2011 – 142 points   
* 2012 (6 month period) – 56 points 

9.  National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5 provides that an ARNG officer will be terminated upon attaining age 60, completion of maximum years of service, or other reasons.  Officers in the grade of Major General who are not earlier removed from an active status will be removed from an active status in the ARNGUS on the date that is 30 days after completion of 35 total years of service, or on the 5th anniversary of their appointment in that grade, whichever is later.



10.  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 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.

11.  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.

12.  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 for administration of the program.

13.  In similar cases, the Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, has recommended approval of an applicant's request only if an applicant left military service within 90 days following implementation of the TEB Program.  Although significant measures were made by DOD, the VA, and the Army to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were 


not fully aware of the requirement to transfer benefits prior to leaving military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was in a TEB qualifying status from well before the creation of the TEB program and met all of the requirements for TEB.  He would not have incurred any additional service obligation at the time he was retired.

2.  The law that created the TEB is explicit in that a service member must execute a TEB while serving as an active member of the Armed Forces.  The only exception to this requirement was granted to service members who were separated during the initial implementation period.

3.  Implicit in the Army's retirement system is the universally accepted principal that officers have a responsibility for their own careers.  The general requirements and workings TEB program are widely known and specific details were widely published in official and quasi-official publications and official communications.  

4.  While it is possible the applicant worked up until the day before he was retired he should have been aware that his position was being deleted and he would be released at that time.  He has not provided and the available records do not show he did not have sufficient notification prior to his retirement date that he could not have completed outprocessing or that he was unaware of the requirements for TEB participation. 

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)                                         AR20140001063



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ABCMR Record of Proceedings (cont)                                         AR20140001063



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