IN THE CASE OF:
BOARD DATE: 19 April 2012
DOCKET NUMBER: AR20110020921
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, that he be granted an exception to policy to the Post-9/11 GI Bill that will allow him to transfer his education benefits to his dependents.
2. The applicant states that he was told that his application was processed while he was on terminal leave and was led to believe that he could choose the option at any time as well. He goes on to state that he kept checking for approval and finally called and was told he did not qualify because he was no longer on active duty.
3. The applicant provides a copy of an email from the Army G-1, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his DA Form 31 (Request and Authority for Leave), and a copy of his retirement orders, a copy of his clearance papers,
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army in Columbia, South Carolina on 25 September 1989 for a period of 4 years, training as a motor transport operator, and a cash enlistment bonus.
2. He completed his training and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 1 May 2007.
3. On 20 November 2009 the applicant departed on permissive temporary duty (PTDY) and terminal leave.
4. On 31 January 2010 he was honorably released from active duty (REFRAD) and was transferred to the Retired List effective 1 February 2010. He had served 20 years, 4 months and 6 days of active service.
5. In the processing of this case a staff advisory opinion was obtained from the Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, 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. Individuals had to be serving on active duty at the time benefits were transferred and there is no record of such a transfer being made, of his attempting to make such a transfer or being given false information by a reliable source about the rules of transferring education benefits. Additionally, had he attempted to transfer his benefits before he departed on PTDY and terminal leave he would not have been eligible without incurring an additional 1-year service obligation; however, at the time of his retirement he was eligible.
6. The advisory opinion was provided to the applicant for comment and he responded to the effect that he attempted to make the transfer and was given incorrect information. He also submits a copy of the information paper provided by the education center at the time.
7. Public Law 110-252, section 3319, dated 22 June 2008, authorized the transfer of unused education benefits to 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.
8. On 22 June 2009, the Office of the Under Secretary of Defense released Directive-Type Memorandum 09-003 Post-9/11 GI Bill which announced that individuals serving in the Armed Forces could affect a transfer of the GI Bill benefits effective 1 August 2009.
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 retired from the Army on 31 January 2010 and there is no record of his transferring 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 was published well in advance of its implementation.
3. While the sincerity of the applicants claim that he completed a transfer of his benefits prior to retiring is not in question, he failed to show through the evidence submitted with his application and the evidence of record sufficient evidence to support his claim. In the absence of such evidence, there appears to be no basis to grant his request.
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) AR20110020921
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110020921
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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