IN THE CASE OF:
BOARD DATE: 20 December 2012
DOCKET NUMBER: AR20120010571
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 educational benefits to his family members.
2. The applicant states that at the time of his transition and discharge he was heavily medicated and resided at Balboa Hospital for an amputation. He states that he was aware of the GI Bill but never received details for using it.
3. The applicant provides no additional evidence.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 14 September 2000 for a period of 3 years and training as a chemical operations specialist. He successfully completed his training and was transferred to Fort Polk, Louisiana, for his first duty assignment.
2. On 7 January 2003, the applicant received a general officer memorandum of reprimand for driving while intoxicated.
3. The applicant reenlisted on 4 October 2003 for a period of 6 years and a selective reenlistment bonus. He was promoted to the rank of sergeant on 1 March 2004 and was transferred to Germany on 22 March 2004.
4. On 12 August 2006, he was transferred to Korea and on 6 July 2007 the applicant was injured when he fell from a third floor window sill of the barracks and injured himself. He was intoxicated at the time and the injury resulted in a partial amputation of his right leg on 30 October 2008. A line-of-duty determination was made that the applicant's injury was not in the line of duty due to his own misconduct.
5. Although not explained in the available records, the applicant was reduced from the rank of sergeant to the rank of private first class on 20 February 2009.
6. On 3 March 2010, a physical evaluation board (PEB) convened at Fort Lewis, Washington, which determined that the applicant was physically unfit and recommended his separation from the service without disability benefits.
7. The applicant appealed the findings and recommendations of the PEB. On 9 March 2010, the findings and recommendations of the PEB were affirmed.
8. On 31 October 2010, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(6), due to disability not in the line of duty. He completed 10 years, 1 month, and 17 days of active service.
9. In the processing of this case an 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 attempt to make such a transfer, or of his being given false information by a reliable source about the rules of transferring educational benefits. Additionally, Soldiers are not eligible if they are separated based on willful misconduct or had any adverse flagging actions. Furthermore, the applicant would have had to incur an additional service obligation in order to be eligible for transfer. The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.
10. Public Law 110-252, section 3319, dated 22 June 2008, authorized the transfer of unused educational 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.
11. 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 applicant's 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 discharged from the Army on 31 October 2010. There are no provisions in the law for retroactive eligibility that will allow him to transfer his benefits to his family members.
2. It is also noted that he was not eligible to transfer his benefits based on the facts and circumstances (his willful misconduct) that led to his discharge and he did not have enough service to qualify for transfer of educational benefits.
3. Accordingly, there appears to be no basis to grant his request for a transfer of his education benefits to his family members.
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 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) AR20120010571
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ABCMR Record of Proceedings (cont) AR20120010571
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