BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20140012956 


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 a reconsideration of his previous request for eligibility to transfer his Post 9-11 GI Bill educational benefits (TEB) to his son by – 

* backdating the original date of the TEB acceptance to his son's date of birth 
* backdating the TEB to his original retirement request in September 2013
* waiving the additional duty service commitment (ADSC) 

2.  The applicant states:

* his original request for TEB was denied because he had already been approved for and issued retirement orders
* his retirement orders were amended to fulfill a request from the U.S. Special Operations Command (SOCOM) Deputy Commander to remain on active duty in order to work on a sensitive project
* SOCOM needed someone with a very specific set of skills and experience and he was the only person at the headquarters who met that criteria at the time
* he contacted the U.S. Army Human Resources Command (HRC) to inquire about backdating the transfer of his educational benefits to the original retirement request date of September 2013; however, he was told that was a different circumstance and he would have to resubmit his paperwork because his retirement orders were no longer valid
* when he resubmitted the TEB request in May 2014, he received notice that the transaction was accepted and he had incurred an additional four year ADSC
* it makes more sense for him to retire, given the high number of lieutenants colonel (LTC) in his specialty, to make room for the next generation of Army leaders
* in his mind he had been hoping to have a child some day and held off on using his benefits so he could pass them to that child
* he realizes that he has some personal responsibility for the situation but that he was unaware of the ADSC requirement
* had he better understood how the Post 9/11 GI Benefits worked, he would have first passed them to his wife upon their marriage in 2011 so the benefits could later be transferred to their son once he was born

3.  The applicant provides no additional supporting documentation.
 
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 AR20130020405, on 19 December 2013.

2.  On 26 August 1991, the applicant enlisted in the U.S. Army Reserve (USAR) as a cadet.  On 6 August 1993, he was appointed as a Reserve commissioned officer of the Army.  On 1 June 2010, he was promoted to LTC.

3.  He married in 2011 (specific date of marriage is not of record) and his son was born on 22 June 2013. 

4.  Orders 279-0002, issued by Headquarters, U.S. Army Garrison, Fort Stewart, GA on 6 October 2012, granted his request for retirement with an effective date of        30 September 2013.

5.  Orders 158-0001, issued by Headquarters, U.S. Army Garrison, Fort Stewart, GA on 7 June 2013, amended Order 279-0002 to show an effective date of retirement of 31 May 2014. 

6.  His available record does not contain any TEB documentation.  He states he applied for participation in the TEB program after his son was born; however, his request was denied.  Following the amendment of his retirement orders, his 2nd request was granted with the caveat that he would incur an additional 4 year ADSC.

7.  He completed 20 years of service on 5 August 2013 and retired effective      31 May 2014, following the completion of 20 years, 8 months, and 19 days of service.

8.  His mandatory removal date as an LTC would have been 1 September 2021.

9.  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 member of the Armed Forces, on or after 1 August 2009, who is eligible for the Post-9/11 GI Bill may request to transfer entitlement to their educational assistance provided they:

	a.  have at least 6 years of service in the Armed Forces on the date of election and agree to serve 4 additional years in the Armed Forces from the date of election; or

	b.  have at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, but 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.

10.  The DOD Fact Sheet on Post 9/11 GI Bill Transferability, dated 28 April 2009, provides the following information:

   a.  When initially implemented, the Post-9/11 GI Bill education transfer program was phased in to enable servicemembers nearing retirement to accept a 1, 2, or 3 year ADSC.  That phase-in period expired 31 July 2012 and all active duty now incur a 4-year ADSC.  

   b.  Any member of the Armed Forces on or after 1 August 2009, who is eligible for the Post-9/11 GI Bill, and

   (1)  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.
   

   (2)  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 

   (3)  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. 

* for those individuals eligible for retirement on 1 August 2009, no additional service is required
* for those individuals who have an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service is required
* for those individuals eligible for retirement after 1 August 2009 and before 1 August 2010, 1 year of additional service after approval of transfer is required
* for those individuals eligible for retirement on or after 1 August 2010 and before 1 August 2011, 2 years of additional service after approval of transfer is required
* for those individuals eligible for retirement on or after 1 August 2011 and before 1 August 2012, 3 years of additional service after approval of transfer is required
* for those individual eligible for retirement on or after 1 August 2012,   4 years of additional service after approval of transfer is required

   c.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement to a spouse and/or child who is enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and eligible for benefits, at the time of transfer to receive TEB.

11.  Army Regulation 600-8-24 (Officer Transfers and Discharges) states once the retirement has been approved and the order issued, it will not be amended or revoked except for promotion option, extreme compassionate reasons, or for the good of the service.  The amendment or revocation must occur prior to the retirement date.




DISCUSSION AND CONCLUSIONS:

1.  The applicant did not elect to participate in the TEB and pass his benefits to his wife when they married 2011.  If he had done so, he would have incurred a   4-year ADSC at that time, which would have made his earliest authorized retirement date some time in 2015.

2.  His request for retirement was approved and retirement orders were issued on 6 October 2012 with an effective date of 30 September 2013.  He received an amended retirement date apparently for the good of the service.

3.  He states he was denied TEB participation following his son's birth, but was granted TEB participation during the 8-month active duty extension; however, he has not provided and the record does not contain any evidence pertaining to any application or denial for TEB participation at any time, or that pertains to the approval of a TEB request with the caveat of incurring a 4-year ADSC.

4.  His son's date of birth (22 June 2013) has little bearing on his eligibility to participate in the TEB.  At the time he retired he had two eligible dependents properly enrolled in DEERS to whom he could have transfer his benefits if he met all of the TEB requirements.  

5.  However, by not accepting the 4-year ADSC, he no longer met the program’s intent of extending his active duty obligation an additional 4 years.  

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 to amend the decision of the ABCMR set forth in Docket Number AR AR20130020405, dated 19 December 2013.




      __________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)                                         AR20140012956



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ABCMR Record of Proceedings (cont)                                         AR20140012956



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