IN THE CASE OF:
BOARD DATE: 17 January 2013
DOCKET NUMBER: AR20120005605
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 he was not made aware by his unit that he had to transfer his benefits before he retired.
3. The applicant provides copies of his separation documents and his 20-year letter.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 31 August 1989 and served on active duty until he was honorably released from active duty on 11 December 1991.
2. He enlisted in the Army National Guard and served through a series of continuous reenlistments. In 2003 he was ordered to active duty in support of Operations Noble Eagle and Enduring Freedom.
3. On 17 March 2009 he was issued his 20-year letter by the North Carolina Army National Guard (NCARNG) and on 1 May 2010 he was honorably discharged from the NCARNG and was transferred to the Retired Reserve.
4. In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau (NGB) which recommends approval of his request because he was eligible to apply for transfer of his benefits before he left the service.
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 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.
2. Notwithstanding the advisory opinion from the NGB, he retired from the Army on 1 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.
3. 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.
4. While the sincerity of the applicants claim that he was not informed that he had to be on active duty to complete a transfer of his benefits prior to retiring is not in question, the evidence submitted with his application and the evidence of record fails to 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:
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) AR20120005605
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