BOARD DATE: 31 May 2011
DOCKET NUMBER: AR20100025480
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 that before he retired he transferred his Montgomery G.I. Bill (MGIB) benefits to his dependents. However, for some reason now that his family needs them no one can find the transfer. He goes on to state that he reenlisted in Iraq in 2006 and was allowed to do the transfer then. Now that his family needs it no record of the transfer can be found and it appears that he paid $1200 for nothing.
3. The applicant provides a one-page letter explaining his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army in Montgomery, Alabama on 30 July 1991 and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-6 on 1 February 2006.
2. He served in Iraq/Kuwait from 9 April to 22 December 2003 and from 7 December 2005 to 6 December 2006. He reenlisted in Iraq on 2 February 2006 for an indefinite period. There were no bonuses or incentives associated with his contract.
3. On 12 August 2008 he was placed on the Temporary Disability Retired List (TDRL) with an 80% disability rating. He had served 17 years and 13 days of total active service. On 18 May 2010 he was permanently retired with an 80% disability rating.
4. 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 Reserve at the time benefits were transferred.
5. 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.
6. 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
12 August 2008 which was a year before the effective date (1 August 2009) of the program.
2. Accordingly, the applicant was not on active duty when the program was implemented. Unfortunately, there are no provisions in the law for retroactive eligibility that will allow him to transfer his benefits.
3. The applicant has provided no evidence to support his contention that he was allowed to transfer his benefits before the program went into effect. Therefore, in the absence of evidence to the contrary, it must be presumed that the applicant was not then or now eligible for transfer of his benefits.
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) AR20100025480
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