IN THE CASE OF:
BOARD DATE: 3 January 2013
DOCKET NUMBER: AR20120008744
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 to transfer his Post-9/11 GI Bill benefits to his spouse.
2. The applicant states he is no longer able to attend school and he would like to transfer these education benefits to his wife.
3. The applicant provides no documentary evidence in support of his request.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows he was discharged from the Army National Guard on 28 April 2009 and he was placed on the retired list by reason of permanent disability.
2. In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB). It indicates that 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 and who have 6 years of eligible service regardless of the reason for separation. The record shows the applicant's last day of service with the ARNG was 28 April 2009. NGB recommends denial of the applicant's request based on the fact he was no longer serving as a member of the Armed Forces on or after 1 August 2009, which was the implementation date of the program.
3. On 25 October 2012, the applicant was provided a copy of the NGB advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.
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 that went into effect on 1 August 2009.
5. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The Department of Veterans Affairs 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.
c. 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:
The applicant's request to correct his record to show he was eligible to transfer his Post-9/11 GI Bill benefits has been carefully considered. However, 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. Therefore, there is no 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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