IN THE CASE OF:
BOARD DATE: 27 September 2012
DOCKET NUMBER: AR20120005708
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, correction of his records to show his educational benefits were transferred to his eligible dependents in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. He states he was never counseled or provided information on the new benefits. If he had been, he would have delayed his retirement to take advantage of this benefit.
3. He provides no documentation.
CONSIDERATION OF EVIDENCE:
1. He was retired for length of service on 31 March 2009 after completing more than 20 years of active duty.
2. On 21 May 2012, an advisory opinion was obtained in the processing of this case. The Army, Office of the Deputy Chief of Staff, G-1, recommended disapproval of the applicant's request because he was not a member of the service on or after 1 August 2009, which is a requirement established in law.
3. He was provided a copy of this advisory opinion for comment. He responded by stating that if he had known this program was going to be implemented he would have pulled his retirement and waited until 1 August 2009 to retire.
4. Public Law 110-252, section 3319, dated 22 June 2008, authorized the transfer of unused education benefits to eligible 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.
5. On 22 June 2009, Department of Defense established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states that an eligible individual is any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill.
6. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.
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 was retired on 31 March 2009, 4 months before the program went into effect on 1 August 2009 and even before the eligibility criteria was established. In March 2009 he would not have known what to change his retirement date to. Unfortunately, there are no provisions in the law for retroactive eligibility that will allow him to transfer his benefits.
2. While it is certainly understandable that he desires to transfer his benefits, he was not eligible to transfer his benefits when the program was implemented and there are no provisions to achieve a transfer in the applicants case. To do so would afford him a benefit not afforded to others in similar circumstances. Accordingly, there appears to be 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:
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) AR20120005708
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120005708
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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