BOARD DATE: 18 October 2012
DOCKET NUMBER: AR20120004484
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, an exception to policy to the Post-9/11 GI Bill that will allow him to transfer his education benefits to his family members.
2. The applicant states that in 2009 he changed his Montgomery GI Bill to the Post-9/11 GI Bill solely for the purpose of transferring it to his family members. He goes on to state he went to the Transfer of Education Benefits (TEB) website and made the transfer prior to his retirement on 1 June 2010. He goes on to state now that it is time to use the benefits he is being told by the TEB website he is not eligible to transfer the benefits.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 16 February 1988. He completed his training and he remained on active duty through a series of continuous reenlistments. He was promoted to the rank/grade of master sergeant (MSG)/E-8 on 1 June 2006.
2. On 31 May 2010, he was retired by reason of sufficient service for retirement and he was transferred to the Retired List effective 1 June 2010. He completed 22 years, 3 months, and 15 days of creditable active service.
3. In the processing of this case, on 11 April 2012, a staff advisory opinion was obtained from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1. The advisory official 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.
4. On 12 April 2012, the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. On 25 April 2012, he responded to the effect that he met with an education counselor on 7 October 2009 and she assisted him in making the transfer. On
9 October 2009, he again met with the education counselor and they logged in again and saw that his request had been approved and at that time he allocated his benefits to his family members. He continues by stating that he did not think to make a screen shot of the approval because he was being assisted by an education professional and it was only 2 weeks outside of the 90-day implementation phase. He further states he is providing two documents to show he was indeed counseled.
5. 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.
6. On 22 June 2009, the Office of the Under Secretary of Defense released Directive-Type Memorandum 09-003 Post-9/11 GI Bill that 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 and supporting documents 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 May 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 to his family members.
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 applicant has provided documents showing he received his education counseling, they do not establish that he made application for the transfer of his benefits on the TEB database.
4. While the sincerity of the applicants claim that he completed a transfer of his benefits prior to retiring is not in question, the evidence submitted with his application and the evidence of record does not support his claim. Therefore, 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:
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.
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