IN THE CASE OF:
BOARD DATE: 15 September 2015
DOCKET NUMBER: AR20150001068
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 educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states:
* he was initially retired in February 2006
* he recently reached a settlement with the U.S. Government that changed his retirement date to 31 August 2009
* he met the requirements that were in effect at the time to transfer education benefits as a result of the settlement
3. The applicant provides:
* U.S. Court of Federal Claims decision
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 30 January 1981. He was honorably discharged on 17 March 1983 to accept a commission. He was appointed as a Reserve commissioned officer in the rank of second lieutenant on 18 March 1983 with concurrent orders to active duty.
2. On 1 October 1992, he was honorably released from active duty in the rank of captain under the provisions of the Voluntary Separation Incentive Program/Special Separation Bonus and he was transferred to the U.S. Army Reserve Control Group (Reinforcement).
3. On 24 February 1993, he was appointed as a captain in the Oregon Army National Guard.
4. He was promoted to major effective 1 October 1993 and he was promoted to lieutenant colonel effective 24 August 1999.
5. On 2 April 2001, he received his notification of eligibility for retired pay at age 60.
6. On 6 May 2002, he was ordered to active duty as a member of the Army National Guard in support of Operation Enduring Freedom.
7. On 28 January 2003, he was honorably released from active duty.
8. On 29 September 2003, he was promoted to the rank of colonel.
9. On 1 October 2003, he was ordered to active duty under the the Army National Guard Active Guard Reserve Program.
10. On 28 February 2006, he retired from active duty and he was placed on the Retired List effective 1 March 2006.
11. On 21 May 2014, the applicant successfully won a settlement with the U.S. Government in which his retirement date was changed to 31 August 2009.
12. On 10 July 2014, the applicant's DD Form 214 for the period ending 28 February 2006 was revoked and he was issued a new DD Form 214 showing a retirement date of 31 August 2009.
13. 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 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 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.
14. 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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.
DISCUSSION AND CONCLUSIONS:
1. The applicant was fully eligible to transfer his educational benefits under the TEB as a result of his settlement with the U.S. Government and the correction of his DD Form 214 for the period ending 28 February 2006 changing his retirement date to 31 August 2009.
2. It is reasonable to presume that had he been serving on active duty at the time of his retirement, he would have transferred his benefits. Therefore, as a matter of equity, his records should be corrected to show he did so in a timely manner prior to his effective date of retirement.
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 a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to
transfer Post 9/11 GI Bill benefits to his dependents prior to his retirement, 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) AR20150001068
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20150001068
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120001374
The applicant requests, in effect, correction of his military records to show he transferred his Montgomery GI Bill (MGIB) benefits to his son prior to retirement under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. The policy further states the Secretaries of the Military Departments will provide AD participants and members of the Reserve Components with qualifying AD service individual pre-separation or release from AD counseling on the benefits under the...
ARMY | BCMR | CY2010 | 20100024460
BOARD DATE: 7 June 2011 DOCKET NUMBER: AR20100024460 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The policy states any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individuals 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...
ARMY | BCMR | CY2013 | 20130003367
The applicant requests correction of his military records to show he transferred his education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his dependents in March 2011. 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. f. A child may use the benefit while the eligible individual remains in the Armed Forces or after separation from active...
ARMY | BCMR | CY2011 | 20110021113
The applicant stated he was not informed of the requirement to transfer his benefits during his demobilization in February 2010, retirement on 1 August 2010, or at any time during his service. e. However, upon a review of the applicant's application, military records, and review by the GI Bill Benefits manager, they determined the applicant did not transfer his Montgomery GI Bill to Post-9/11 GI Bill while in service to comply with Post-9/11 GI Bill policies by transferring his benefits...
ARMY | BCMR | CY2011 | 20110019459
By Public Law 110-252, only eligible children and/or spouses enrolled in DEERS are eligible to receive the transferred benefits and the Soldier must transfer the benefits while a member of the Selected Reserve or a Regular Army Soldier. There is no evidence the applicant took all necessary steps to ensure the adopted child was enrolled in DEERS during the period the applicant was eligible for the transfer and he attempted to transfer the benefit prior to leaving active or Reserve military...
ARMY | BCMR | CY2014 | 20140019410
The applicant states that while he was being processed for medical separation he was not informed about the transfer of education benefits (TEB) program. Evidence shows that the applicant was eligible to transfer his educational benefits under the Post-9/11 GI Bill transferability program prior to his retirement. The evidence of record shows he had been informed by a document signed on 5 September 2008 of his eligibility for GI Bill education benefits.
ARMY | BCMR | CY2012 | 20120009634
The applicant states: * he was never informed of Post-9/11 GI Bill or the requirement to be on active duty to transfer this benefit * he believes he should have been informed of his eligibility during his outprocessing briefing * he was not required to serve any additional service and had met the requirements; he retired on 30 November 2009 3. The advisory official recommended approval and stated the applicant gained eligibility for the Post-9/11 GI Bill benefit before he left the service;...
ARMY | BCMR | CY2014 | 20140004124
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...
ARMY | BCMR | CY2014 | 20140004124
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...
ARMY | BCMR | CY2012 | 20120005675
A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her family members (on or after 1 August 2009). The applicant's last day in military service was 31 May 2006. The applicant in this case had more than 20 years of service upon his retirement, but he was not eligible to transfer the benefit because the law requires Soldiers to be in the service on or after 1 August 2009. c. A Soldier may only transfer to...