IN THE CASE OF:
BOARD DATE: 3 May 2012
DOCKET NUMBER: AR20110021705
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 an exception to policy that will allow him to transfer his Post 9/11 G.I. Bill educational benefits to his family members.
2. The applicant states that at the time the law went into effect he was serving as a recruiter in Fairfield, California, his company headquarters was located in Seattle, Washington, and his battalion headquarters was in Las Vegas, Nevada; therefore, he was away from all of the information that was normally disseminated among Soldiers. He goes on to state that he out-processed at Fort Irwin, California and his papers were simply stamped and he was sent on his way with nothing being said about making a transfer while still on active duty. He simply was never informed that he had to be on active duty to make the transfer.
3. The applicant provides no additional documents with his application.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 2 April 1987 for a period of 4 years. He completed his training as a cannon crewman and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 1 April 2003.
3. The applicants last duty station was the Medical Recruiting Detachment in Fairfield, California and on 30 April 2010 he was honorably retired at Fort Irwin, California due to sufficient service for retirement and transferred to the Retired List effective 1 May 2010. He had served 23 years and 29 days of active service.
4. In the processing of this case a staff advisory opinion was obtained from 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.
5. The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of this Board.
6. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute the transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. General eligibility criteria are as follows:
a. Service members must have accrued specific qualifying active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.
b. Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.
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 30 April 2010 and there is no record of him transferring his educational benefits prior to 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 in advance of its implementation.
3. The applicant has provided no evidence to support his contention that he was 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 retirement.
4. Accordingly, there appears to be no basis to grant his request to transfer his educational 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) AR20110021705
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ABCMR Record of Proceedings (cont) AR20110021705
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