IN THE CASE OF:	 

		BOARD DATE:	  30 October 2014

		DOCKET NUMBER:  AR20140004124 


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, through his Member of Congress, requests reconsideration of his previous request for an exception to policy to transfer his unused educational benefits to his two children under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he made his decision to retire from the Oklahoma Army National Guard (OKARNG) in September 2009.  He attended drill weekend on 10-11 October 2009 and performed all necessary out-processing activities.  His last paid drill was on 11 October 2009.  On 20 October 2009, he turned in all of his assigned equipment.  His retirement effective date was 1 November 2009.  He retired believing his dependents were eligible to receive his Post-9/11 GI Bill benefits.  He believes he has clearly shown he fell into the well-documented window during which little or no information was available about the TEB provision of the Post-9/11 GI Bill for dependents.

3.  The applicant provides:

* Orders 041-073, issued by the OKARNG on 10 February 2010
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), for the period ending 1 November 2009
* Special Orders Number 27 AR, issued by the NGB on 17 February 2010
* an extract of his Master Military Pay Account (MMPA), as of 31 May 2010
* OKARNG Clothing Record, dated 20 October 2009
* ARPC Form 249-E (Chronological Statement of Retirement Points), issued by the U.S. Army Human Resources Command (HRC) on 21 January 2014
* letter from his former ARNG unit commander, dated 22 January 2014, with DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 April 2009 through 31 January 2010
* letter from his former ARNG Readiness/Training Noncommissioned Officer (NCO), dated 22 January 2014

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130008214 on 7 January 2014.

2. The applicant provides a Chronological Statement of Retirement Points, a letter from his former commander, and a letter from his former Readiness/Training NCO.  These items are considered new evidence not previously considered by the Board; therefore, this new evidence will now be considered by the Board.

3.  The applicant was serving as a first lieutenant in the OKARNG when he received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 1 April 2009.

4.  On 1 November 2009, he transferred to the Retired Reserve.

5.  He provided a Master Military Pay Account Print, as of 31 May 2010, which shows he last performed unit inactive duty training (drill) on 10-11 October 2009.

6.  As noted in the previous Record of Proceedings, his record contains an OER that indicates he was still performing duties with the OKARNG through 31 January 2010.  He now provides a letter from his former ARNG unit commander, dated 22 January 2014, who states the OER ending date is in error.  The applicant's ending date should read 1 November 2009, based on his OKARNG Clothing Record and his NGB Form 22.

8.  He provided a letter from his former ARNG Readiness/Training NCO, dated 22 January 2014, who states the applicant was officially cleared from the unit in October 2009.  During that period she spoke with the applicant about the Post-9/11 GI Bill.  Their research showed there was no additional service obligation as he had completed 20 qualifying years of Reserve service effective August 2009.  His requested effective date of separation was 1 November 2009.  His pay records were verified and he did not return to duty after 11 October 2009.

9.  The Post-9/11 Veterans Educational Assistance Act of 2008 improves educational benefits for certain individuals serving on active duty in the Armed Forces on or after 11 September 2001.  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 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 applicant's request for an exception to policy to transfer his educational benefits to his two children under the TEB provision of the Post-9/11 GI Bill was carefully considered and found to have merit.

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.  However, specific guidance for 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.  Although his records contain an OER indicating he was still performing duties with the Oklahoma ARNG through 31 January 2010, his former unit commander stated the OER ending date is in error.  Further, his former unit clerk stated he was officially cleared from the unit in October 2009.  His pay records were verified and he did not perform duty after 11 October 2009.

4.  The evidence of record confirms the applicant was an active member of the Selected Reserve through 31 October 2009 and transferred to the Retired Reserve on 1 November 2009 within 90 days of implementation of the program.  In view of the fact that TEB application procedures were not fully implemented at the time the applicant was transferred to the Retired Reserve, it would serve the interest of equity to correct his records to show he applied to transfer his educational benefits to his eligible dependents under the TEB provision of the Post-9/11 GI Bill while still serving as an active member of the Selected Reserve.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20130008214, dated 7 January 2014.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his family members prior to his transfer to the Retired Reserve provided all other program eligibility criteria are met.





      _____________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)                                         AR20140004124



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ABCMR Record of Proceedings (cont)                                         AR20140004124



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