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