IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100022100 


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, in effect, transfer of his educational benefits to his daughter under the Post 9/11 GI Bill Transferability Program.

2.  The applicant states:

* he honorably served in the U.S. Army for 24.5 years which included combat service during Operation Desert Storm while a member of the
9th Combat Engineer Battalion attached to the 1st Infantry Division
* he is now 60 years old and requests his daughter be made his beneficiary and be allowed to use his Post 9/11 GI Bill eligibility to receive a college education

3.  The applicant provides his:

* daughter's birth certificate
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* retirement orders

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of 


Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After completing 24 years, 4 months, and 9 days of creditable active service, the applicant retired from the Regular Army on 30 September 2003 in the rank/grade of master sergeant (MSG)/E-8.

3.  During the processing of this case, on 7 February 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who states:

* the applicant is not eligible to transfer benefits under the Post 9/11 GI Bill Transferability Program to his dependents as he separated from military service prior to the program implementation
* Department of the Army and Defense policy requires a Soldier to be on active duty or a member of the Selected Reserve of the U.S. Army in order to transfer benefits
* these policies are based on requirements established in law
* the Army does not have the legal authority to grant an exception to policy allowing those who retired or were otherwise separated from the Army to transfer Post 9/11 GI benefits
* the advisory opinion is based on legal authority outlined in Public Law 110-252, section 3319(b)
* Specific congressional action would be required to change or amend the current legislation in order to change the applicant’s eligibility status

4.  The advisory official recommended denial of the applicant’s request and stated that his recommendation is in accordance with guidance in Public Law 110-252, section 3319(b).  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 date of 1 August 2009.


5.  On 7 February 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

6.  On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states 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:

	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 the date of election; or

	b.  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

	c.  is or becomes retirement eligible during the period 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.

7.  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's contentions were carefully considered.  However, since he retired on 30 September 2003, almost 6 years prior to the implementation of the Post 9/11 GI Bill Transferability Program, he is not eligible to transfer benefits under the program to his daughter.

2.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices he made in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.


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)                                         AR20100022100



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ABCMR Record of Proceedings (cont)                                         AR20100022100



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