BOARD DATE: 25 September 2014
DOCKET NUMBER: AR20140002943
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 his education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he applied to transfer his benefits while he was on active duty but did not get a final decision before he retired.
3. The applicant provides copies of his:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* orders for active duty
* Department of Veterans Affairs (VA) letter. dated 2 April 2013
CONSIDERATION OF EVIDENCE:
1. The applicant retired as a Regular Army lieutenant colonel effective 31 May 2006.
2. In support of his request the applicant provides:
a. Orders showing he was ordered to active duty for the period 1 July to
26 December 2009. The purpose is shown as, "UCMJ PROCESSING."
b. A 2 April 2013 VA letter denying his claim for education benefits under the Post 9/11 GI Bill. The request was denied because "the Army hasn't indicated that you have been approved for the transferability program."
3. In the processing of this case an advisory opinion was obtained from the Chief of the Education Incentives Team at the U.S. Army Human Resources Command (HRC). The advisory official recommended disapproval of the applicant's request because the applicant was only on active duty during the Post 9/11 GI Bill implementation period (90 days after the implementation date of 1 August 2009) for the purpose of a formal investigation and court-martial proceedings. The applicant had an adverse action effective 1 July to 26 December 2009 (his last day of active duty), so he was ineligible for TEB. Per the Fort Gordon, Georgia, Staff Judge Advocate's office, the applicant was later convicted in the U.S. District Court, Southern District of Georgia, in September 2010.
a. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of education benefits (on or after 1 August 2009). The applicant was voluntarily recalled to active duty 14 April 2008 for 365 days; however, on 30 March 2009 his status was changed to involuntary active duty for the purpose of a formal investigation and court-martial proceedings until
26 December 2009 (his last day in service). On 30 July 2009, the applicant requested TEB; however, his request was rejected because he had an adverse action.
b. A Soldier must have no adverse action flag and have an honorable discharge to transfer benefits. The applicant had an adverse action flag; therefore, he was ineligible for TEB.
4. On 30 May 2012, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal; however, h did not respond.
5. On 22 June 2009, Department of Defense (DOD) established the criteria for the 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.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows the applicant was only on active duty during the Post 9/11 GI Bill implementation period (90 days after the implementation date of 1 August 2009) for the purpose of a formal investigation and court-martial proceedings. The applicant had an adverse action effective 1 July to
26 December 2009 (his last day of active duty), so he was ineligible for TEB.
2. In view of the above, his 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) AR20110007920
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ABCMR Record of Proceedings (cont) AR20140002943
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