IN THE CASE OF:
BOARD DATE: 15 December 2011
DOCKET NUMBER: AR20110005402
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 transfer of her Post 9/11 GI Bill benefits to her spouse.
2. The applicant states she desires her Montgomery GI Bill benefits be transferred to her spouse under the Post 9/11 GI Bill Transferability Program. She goes on to state that she inquired at the Department of Veterans Affairs (VA) and she was told that they were unable to do so and referred her to this Board.
3. The applicant provides a copy of her marriage license, her DD Form 214 (Certificate of Release or Discharge from Active Duty), and a copy of her VA Certificate of Eligibility.
CONSIDERATION OF EVIDENCE:
1. The applicant was commissioned as a Regular Army Medical Corps captain on 10 June 2002. She served as a family physician at Fort Bragg, NC and Fort Wainwright, AK and as a battalion surgeon in Iraq. She was promoted major (MAJ)/O-4 on 10 June 2008.
2. On 31 July 2009, she was honorably discharged at Fort Wainwright due to miscellaneous/general reasons. She served 7 years, 2 months, and 11 days of creditable active service. She was single with no dependents at the time of her discharge.
3. The applicant married on 22 December 2010 in Tampa, FL.
4. In the processing of this case, on 18 July 2011, a staff advisory opinion was obtained from the Office of the Deputy Chief of Staff, G1. The advisory official opined that Public Law 110-252 established the legal limitations on the transferability of unused Post 9/11 GI Bill benefits. The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 and the applicants last day in service was 31 July 2009, one day before the implementation date. Additionally, a Soldier may only transfer benefits to eligible dependents and the dependents must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and eligible for DEERS benefits. Accordingly, no relief was recommended.
5. On 18 July 2011, a copy of the advisory opinion was provided to the applicant for information and to allow her the opportunity to submit comments or a rebuttal. She did not respond.
6. Public Law 110-252, Section 3319, dated 22 June 2008, authorized the transfer of unused educational benefits to eligible family members. The law provided 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 she is not eligible to transfer benefits under the Post 9/11 GI Bill Transferability Program. She was discharged on 31 July 2009, the day before the implementation of the program on 1 August 2009.
2. The law requires that an individual must be on active duty or a member of the Selected Reserve on 1 August 2009 and must have eligible dependents that are enrolled in the DEERS in order to transfer benefits, and the applicant did not meet any of those criteria. Evidence shows the applicant did not marry until
22 December 2010, more than a year after her discharge from the Army.
3. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.
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 to know that the sacrifices she made in service to the United States during the Global War on Terrorism are deeply appreciated. The applicant and all Americans should be justifiably proud of her 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) AR20110005402
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ABCMR Record of Proceedings (cont) AR20110005402
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