BOARD DATE: 26 April 2011
DOCKET NUMBER: AR20100022789
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, granting of an exception to policy to the Post 9/11 G.I. Bill that will allow him to transfer his educational benefits to his family members.
2. The applicant states he was placed on the Temporary Disability Retired List (TDRL) with a 70 percent (%) disability rating due to combat injuries on
9 December 2009 and he was not given a retirement briefing on his educational options prior to discharge or he would have made the election prior to retirement.
3. The applicant provides a copy of the memorandum transferring him to the TDRL and a copy of a letter from the Office of the Deputy Chief of Staff, G1 to his congressional representative regarding his eligibility to transfer his benefits.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving as a major in the Pennsylvania Army National Guard (PAARNG) when he was ordered to active duty on 19 January 2005. He deployed to Kuwait/Iraq from 26 June 2005 to 17 June 2006 and to Iraq from 1 November to 3 December 2006.
2. On 17 July 2007 he was honorably released from active duty due to completion of required service.
3. On 28 October 2009 a Physical Evaluation Board (PEB) convened in Washington, D.C. and found the applicant was unfit for further service and recommended his placement on the TDRL with a 70% disability rating. The Physical Disability Agency also dispatched a memorandum to the applicant on 4 November 2009 advising him to contact the nearest Retirement Services Office (RSO) for assistance and provided him the website of RSOs.
4. On 9 December 2009 he was placed on the TDRL with a 70% disability rating.
5. The letter provided by the applicant addressed to his member of Congress from the Office of the Deputy Chief of Staff, G1 advised the member of Congress 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. Individuals had to be serving on active duty or as a member of the Selected Reserves at the time benefits were transferred.
6. Public Law 110-252, Section 3319, dated 22 June 2008, authorized the transfer of unused educational 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 Directive-Type Memorandum (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 applicants 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 was placed on the TDRL on 9 December 2009 and he did not transfer his educational benefits prior to his retirement. Unfortunately, there are no provisions in the law 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 not advised regarding his education benefits or that he was improperly advised regarding his eligibility for the Post 9-11 GI Bill Transferability Program. 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. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____x____ ____x____ ___x_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.
_________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) AR20100022789
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