IN THE CASE OF:
BOARD DATE: 13 November 2012
DOCKET NUMBER: AR20120007848
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 medically retired and was not informed that he had to transfer his GI Bill benefits while on active duty. He goes on to state that he remembers being told that the Department of Veterans Affairs (VA) could do the transfer.
3. The applicant provides no additional documents in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 22 April 2004 for a period of 3 years and 16 weeks and training as an infantryman. He completed his one-station unit training and airborne training at Fort Benning, Georgia and was transferred to Fort Bragg, North Carolina for his first and only duty assignment.
2. He remained on active duty through continuous reenlistments and was promoted to the rank of sergeant on 1 July 2008. His records also show that he served in Iraq during the periods of 20060801 20071101 and 20081201 20090812.
3. On 8 January 2011, he was retired and was transferred to the Temporary Disability Retired List (TDRL) (Enhanced) with a 60% disability rating. He had served 6 years, 8 months, and 17 days of active service and his pre-separation counseling checklist indicates that he received his briefing on education benefits.
4. On 27 February 2012, he was removed from the TDRL and was permanently retired with a 40% disability rating.
5. In the processing of this case, on 21 May 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. The advisory opinion was provided to the applicant for comment and to date, no response has been received by the staff of the Board.
6. 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.
7. 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. He retired from the Army on 8 January 2011 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 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) AR20120007848
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