IN THE CASE OF:  	  

		BOARD DATE:  15 October 2015	  

		DOCKET NUMBER:  AR20150001478 


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 correction of his records to show he elected to transfer his Post-9/11 GI Bill educational benefits to his daughter.

2.  The applicant states that he was not properly informed of the opportunity to transfer his educational benefits to his authorized dependents prior to being retired from the Army National Guard (ARNG) of the United States (ARNGUS) and Tennessee ARNG (TNARNG).  He signed a request to extend his enlistment in order to deploy; however, retirement documents were issued by ARNG officials without his knowledge.

3.  The applicant provides copies of his –

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* NGB Form 22 (Report of Separation and Record of Service)
* retirement orders, letter, and certificate

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted in the U.S. Army Reserve (USAR) from 27 May 1986 through 19 August 1986 and in the Regular Army from 
20 August 1986 through 5 September 1995.

2.  He had a break in military service from 6 September 1995 through 3 April 2001.

3.  He enlisted in the ARNGUS and TNARNG on 4 April 2001.  He was promoted to staff sergeant/pay grade E-6 in military occupational specialty 31B (Military Police (MP)) on 15 July 2008.

4.  Joint Forces Headquarters, Tennessee National Guard, Nashville, TN, memorandum, dated 17 April 2012, subject:  Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years) shows the G1, TNARNG, notified the applicant that his eligibility for retired pay had been established upon attaining age 60.

5.  An NGB Form 22 shows the applicant was honorably separated from the ARNGUS and TNARNG on 16 April 2012 and transferred to the USAR Control Group (Retired Reserve).  He had completed 11 years and 13 days of net service this period; 9 years and 16 days of prior active Federal service; 20 years and
29 days of total service for pay; and 20 years, 3 months, and 22 days of total service for retired pay.  It also shows the applicant was not available to sign the document.

6.  A DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate) shows the applicant elected RCSBP, spouse only coverage.  It also shows he listed as his dependents his spouse (T___ L. H____-L____) and daughter (B___ l___ H____-L____).  It further shows the applicant and his spouse signed the form on 18 May 2012 and their signatures were witnessed by a State of Tennessee Notary Public.

7.  Joint Force Headquarters, Tennessee National Guard, Nashville, TN, Orders 150-808, dated 29 May 2012, released the applicant from the 130th MP Guard Company and transferred him to the 130th MP Company Guard (Rear), effective 24 May 2012.   The orders show the action was based on the applicant's request.

8.  Joint Force Headquarters, Tennessee National Guard, Nashville, TN, Orders 173-822, dated 21 June 2012 (emphasis added), discharged the applicant from the ARNG and transferred him to the USAR Control Group (Retired Reserve), effective 16 April 2012 (emphasis added).

9.  The applicant provided the following additional documents in support of his application:

	a.  Joint Forces Headquarters, Tennessee National Guard, Nashville, TN, memorandum, dated 25 August 2012, that shows the Command Sergeant Major, Senior Enlisted Leader, congratulated the applicant in achieving 20 years of  credible service.

	b.  TNARNG Certificate for 20 Years of Military Service, presented to the applicant on 25 August 2012, by the Deputy Chief of Staff, Personnel, and TNARNG Retirement Coordinator.

10.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members.  This public law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.

	a.  An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least:

		(1)  6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; or

		(2)  the years of service as determined in Army regulations and established by the Secretary of the Army.

	b.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows:

		(1)  to the individual's spouse;

		(2)  to one or more of the individual's children; or
		(3)  to a combination of the individuals identified above.

	c.  Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.

11.  The VA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was fully eligible to transfer his educational benefits under the Post-9/11 GI Bill transferability program prior his retirement.

	a.  He had at least 6 years of eligible service in order to transfer educational benefits to his spouse and at least 10 years of eligible service to transfer educational benefits to eligible children.  He had more than 20 years of service upon his retirement.

   b.  He was serving as a member of the Selected Reserve on 1 August 2009 and his last day of active service was 16 April 2012 (emphasis added).

   c.  He was eligible to transfer his educational benefits to his authorized dependents enrolled in the Defense Eligibility Enrollment Reporting System.

2.  The evidence of record shows the G1, TNARNG, issued a Twenty Year letter to the applicant on 17 April 2012 (emphasis added).

   a.  The evidence of record also shows the applicant was not available to sign his final NGB Form 22 that discharged him on 16 April 2012 (emphasis added) and transferred him to the USAR Control Group (Retired Reserve).  

   b.  The applicant and his spouse completed the RCSBP Election Certificate on 18 May 2012.
   
   c.  In this regard, it is noted that the orders that separated the applicant from the ARNG effective 16 April 2012 were not issued until 21 June 2012 (emphasis added).
   
   d.  Based on the available evidence of record in this case, it is reasonable to conclude that the applicant may not have been counseled on the requirement to transfer his benefits prior to leaving military service on 16 April 2012.

3.  Therefore, it would be appropriate to correct his military record to show he elected to transfer benefits under the Post-9/11 GI Bill transferability program to his eligible family members prior to his retirement date.


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 and Army National Guard records of the individual
concerned be corrected to show 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 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)                                         AR20150001478



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ABCMR Record of Proceedings (cont)                                         AR20150001478



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