BOARD DATE: 4 January 2013
DOCKET NUMBER: AR20120011253
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 not made aware by his unit that he had to transfer his benefits before he retired.
3. The applicant provides copies of his 20-year letter, his retirement orders, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a copy of his daughters application for use of transferred of education benefits and a copy of his daughters birth certificate.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Mississippi Army National Guard (MSARNG) on 14 October 1981 and served through a series of continuous reenlistments until he was honorably discharged on 9 June 2002.
2. On 24 July 2002, he enlisted in the U.S. Army Reserve (USAR) and on 14 July 2005 he was issued his 20-year letter. He continued to serve until he was transferred to the Retired Reserve on 20 June 2010 in the pay grade of E-7.
3. In the processing of this case a staff advisory opinion was obtained from the Human Resources Command (HRC) at Fort Knox, Kentucky. 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 in an active status 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.
4. The advisory opinion was provided to the applicant for comment and responded to the effect that he was never informed that he had to be in an active status at the time of transfer and contends that his 27 years of service warrants approval of his request.
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 effect 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 was transferred to the Retired Reserve on 20 June 2010 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) AR20120011253
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ABCMR Record of Proceedings (cont) AR20120011253
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