IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110021349 


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 and that his DD Form 214 be corrected to show that he was released from active duty (REFRAD) on 1 August 2009.

2.  The applicant states that leading up to 1 August 2009, there was a lot of confusion on who would be eligible to transfer benefits to their dependents.  He goes on to state that he went to the Fort Campbell Education Center on two different occasions and was told that he would be eligible as long as he was on active duty as of 11 September 2001.  He continues by stating that he is 60% disabled with a traumatic brain injury which makes it nearly impossible for him to attend school because of his short term memory loss. Additionally, his DD Form 214 should be corrected to show that he was REFRAD on 1 August 2009. 

3.  The applicant provides an index of documents provided with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 April 1988 for a period of 3 years.  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 June 2002.

2.  On 23 April 2009 the applicant departed on permissive temporary duty (PTDY) and transitional leave.
3.  On 31 July 2009 he was honorably released from active duty (REFRAD) due to sufficient service for retirement and was transferred to the Retired List effective 1 August 2009.  He had served 21 years, 3 months and 5 days of active service.
  
4.  The applicant’s official records show that the applicant was granted a 40% rating for Combat Related Service Connection (CRSC) for Post Traumatic Stress Disorder (30%) and Traumatic Brain Disease (10%).

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 the evidence shows that he was REFRAD on 31 July 2009.  Therefore, since he was not on active duty on 1 August 2009 he was not eligible to transfer his benefits.

6.  The advisory opinion was provided to the applicant and he responded to the effect that he intended to remain in the army until 2012 but was encouraged by his command to retire when he did.  Unfortunately, he retired 1 minute before becoming eligible to transfer his benefits to his dependents.  He further states that he was injured in Iraq and is in such shape that he cannot use his benefit.  He also provides a statement from his spouse explaining his condition and copies of his treatment records.  

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.

9.  Army Regulation 635-200, Chapter 12, serves as the authority for retirement for length of service.  Paragraph 12-3 provides, in pertinent part, that for Regular Army Soldiers retiring from an active duty status, the date of retirement is the first day of the month following the month in which the Soldier is REFRAD.

 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s 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 REFRAD on 31 July 2009 and was retired from the Army on 1 August 2009, the day the law went into effect. 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 applicant’s claim that he was assured that he would be eligible 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.

4.  The applicant’s contention that his DD Form 214 should be corrected to show that he was REFRAD on 1 August 2009 has also been noted and found to lack merit.  The applicant was properly REFRAD on 31 July 2009, the day before he was transferred to the Retired List effective 1 August 2009 in accordance with the laws and regulations in effect at the time.  

5.  While it is indeed unfortunate that the applicant  was REFRAD the day before the law went into effect, everyone who was REFRAD on that date were also affected and to grant the applicant relief would be to grant him a benefit that others in similar circumstances did not receive and are not entitled to receive.  Accordingly, there is 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:

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)                                         AR20110021349





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ABCMR Record of Proceedings (cont)                                         AR20110021349



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