IN THE CASE OF:	 

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110021975 


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 his Post 9/11 GI Bill benefits equally to his three children.  

2.  The applicant states as an active duty Soldier who retired prior to 1 November 2009, confusion about the transferability of Post 9/11 GI Bill benefits, a situation beyond anyone’s control, created a situation where he did not have the opportunity to transfer his education benefits.  

3.  The applicant provides the following documents in support of his application:

* Counsel Memorandum, dated 24 October 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 May 2009
* Separation Orders
* Transition Leave DA Form 31 (Request and Authority for Leave)
* Department of Veterans Affairs (DVA) Application for Education Benefits
* DVA Certificate of Eligibility
* Army Times Article 



CONSIDERATION OF EVIDENCE:

1.  The applicant’s DD Form 214 shows he was honorably retired on 31 May 2009.  

2.  In connection with the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1.  It indicates the law governing the transferability of unused Post 9/11 GI Bill benefits places legal limitations on transferability.  It limits the eligibility to transfer unused Post 9/11 GI Bill benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  Based on the details provided by the applicant, G-1 does not recommend relief in the applicant’s case.  The applicant was released from active duty for voluntary retirement on 31 May 2009, prior to 1 August 2009, the beginning date of eligibility to transfer Post 9/11 GI Bill education benefits.

3.  On 10 January 2012, the applicant was provided a copy of the G-1 advisory opinion in order to have the opportunity to respond to or rebut its contents.  To date, he has failed to reply.

4.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public 
Law 110-252, House of Representatives, 2642.  In July of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

5.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute 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.

6.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning on 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732:

	a.  service members eligible for retirement on 1 August 2009 – no additional service required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

   d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;

   e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and

	f.  active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct his record to show he was eligible to transfer his Post 9/11 GI Bill benefits based on confusion in the program has been carefully considered.  However, while the Board has granted relief to those members who did not apply for the program prior to leaving active duty if they were on transition leave prior to implementation of the program, a Soldier must have been on active duty, which includes transition leave, on 1 August 2009 in order to qualify for the program.  

2.  The governing law is very specific in requiring that a member be in an active status on 1 August 2009 in order to qualify for the program.  As a result, equity relief in this case would not be appropriate given it would be contrary to law.  As a result, there is an insufficient evidentiary basis to support granting the requested relief. 

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)                                         AR20110021975



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ABCMR Record of Proceedings (cont)                                         AR20110021975



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