IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100012367 


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 that he be granted an exception to policy to the Post 9/11 G.I. Bill that will allow him to transfer his education benefits to his wife and children.

2.  The applicant states, in effect, that he retired on 1 July 2009 and at that time a decision had not been made as to the effective date and it was his understanding that since the bill had been approved before he had submitted his application for retirement he would be eligible for the benefit.  However, after his request for retirement was approved a decision was made that individuals had to be on active duty on 1 August 2009 in order to transfer educational benefits.  He goes on to state that he was not told during his transition briefings that he would not be eligible to transfer his benefits and he believes that the haste by the government to implement the bill has unjustly deprived him of a benefit that he desired to take advantage of and he requests that the Board favorably consider his request given his service to his country.  He also states that he believes that had the bill been properly staff and publicized, members could have made a more informed decision in planning retirement in order to ensure eligibility for the benefit.  In his case he would have retired a month later.

3.  The applicant provides:

* A copy of his retirement orders
* A copy of Directive-Type Memorandum (DTM) 09-003; Post 9/11 GI Bill 
* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty on 17 June 1989 and served continuously in a variety of assignments both in the United States and overseas.  He was promoted to the rank of lieutenant colonel on 1 March 2006.

2.  On 30 June 2009 he was retired and was transferred to the Retired List effective 1 July 2009.  He had served 20 years and 14 days of total active service.

3.  A review of the applicant’s records shows a copy of his DD Form 2648      (Pre-separation Counseling Checklist for Active Component Service Members) which shows that the applicant elected not to receive counseling on his education benefits (Montgomery GI Bill, Veterans Educational Assistance Program, Vietnam era, etc).  He signed that form on 12 May 2008.

4.  In the processing of this case a staff advisory opinion was obtained from the Office of the Deputy Chief of Staff G1 which opines that the applicant is not entitled to relief because the Post 9-11 GI Bill transferability program is based on legal authority outlined in law and information on the program was publicized well in advance of the implementation date of 1 August 2009.

5.  The advisory opinion was provided to the applicant for comment and he responded to the effect that while he understands that the program is a matter of law and that it was advertised, he does not agree that it was well publicized or understood because the Army sent out a message clarifying the program in October 2009.  Therefore, he is asking the Board to grant him an exception that will allow him to transfer his benefits to his four children.  He also states that at no time during his transition processing was he informed that he had to be on active duty on 1 August 2009 in order to effect the transfer of his benefits because he would have requested an extension to allow this to happen.

6.  Public Law 110-252, Section 3319, 22 June 2008 authorized the transfer of unused education benefits to family members.  The law provided, in effect, that the Secretary of Defense would prescribe the implementation of the program.  It also provided that eligible participants must be serving as a member of the armed forces when the transfer is executed.

7.  On 22 June 2009, the Office of the Under Secretary of Defense released DTM 09-003: Post 9/11 GI Bill which announced that effective 1 August 2009, individuals serving in the armed forces could effect a transfer of the GI Bill benefits.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  However, according to the applicable law and regulation he is not eligible to transfer benefits under the Post 9-11 GI Bill Transferability Program.  He retired from the Army on 1 July 2009, prior to the effective date of the program (1 August 2009) and there were no provisions for retroactive eligibility that will allow him to transfer his benefits.

2.  Additionally, the Departments of the Army, Defense, and Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post 9-11 GI Bill and subsequent transfer of entitlements were published well in advance of its implementation.

3.  The applicant has provided no evidence to support his contention that he was improperly advised regarding his eligibility for the Post 9-11 GI Bill Transferability Program.  In fact, his records show that he declined counseling on his education benefits.  Therefore, in the absence of evidence to the contrary, it must be presumed that he was properly advised or was aware of his entitlements at the time of his retirement.

4.  While it is understandable why the applicant desires to be included in the Program, not everyone can always be included in such programs and the Department made a determination of the effective date which unfortunately did not include the applicant and many others who separated from the service prior to the effective date.  However, the fact that the applicant was not included does not constitute an error or injustice.  In view of the forgoing, the applicant’s request should be denied.

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 for correction of the records of the individual concerned.




      __________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)                                         AR20100012367





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ABCMR Record of Proceedings (cont)                                         AR20100012367



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