BOARD DATE: 1 November 2012
DOCKET NUMBER: AR20120010994
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 he was not informed when he retired that he had to complete the transfer of his benefits while on active duty as the program went into effect after he retired. However, he needs the benefits for his son who is starting college this year.
3. The applicant provides no additional documents in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 23 June 1988. He completed his training and remained on active duty through a series of continuous reenlistments. He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 April 2001 and he served tours in Southwest Asia, Afghanistan, and Iraq.
2. On 30 June 2009, he was retired by reason of sufficient service for retirement and he was transferred to the Retired List effective 1 July 2009. He completed 21 years and 8 days of creditable active service.
3. In the processing of this case, on 25 September 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 the applicants last day on active duty was 30 June 2009 that was prior to the implementation of the program.
4. On 27 September 2012, the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. The applicant did not respond.
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. He retired from the Army on 30 June 2009, prior to the implementation of the program. Unfortunately, there are no provisions in the law for retroactive eligibility that would 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 it is understandable that the applicant desires to pass his benefits to his family members, unfortunately, the law did not provide provisions for doing so to individuals who separated prior to the implementation date and to grant him the benefits would afford him a benefit that is not being afforded to others in the same circumstances.
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) AR20120010994
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