IN THE CASE OF:	

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120012799 


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 transfer his education benefits to his family members under the provisions of the Post-9/11 GI Bill. 

2.  The applicant states, in effect, that he went to the Fort Bliss Education Office in early July 2011 to transfer his education benefits to his family members and he was told by the clerk that he had 10 or more years of service; therefore, he could transfer his benefits at anytime.  He goes on to state that he did everything he was required to do to transfer his education benefits under the provisions of the Post 9/11 GI Bill and left the office.  He continues by stating that after he got out and had his family settled in New Jersey he attempted to make the transfer to his dependents and was told that he was not eligible because he was no longer on active duty.  He further states that had it not been for the erroneous information he received he would have made the transfer while he was there. 

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the regular Army on 25 August 2000.  He completed his training as a signal support systems specialist and remained on active duty through continuous reenlistments.

2.  His records show that he deployed to Bosnia for the period of 20020827 – 20021116, to Iraq during the period of 20040213 – 20050410, and to Afghanistan during the period of 20070108 – 20071004.

3.  The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his records contain a duly authenticated DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that he was honorably discharged on 14 October 2011 under the provisions of Army Regulation 635-200, paragraph 5-8, for parenthood.  He had served 11 years, 1 month, and 10 days of active service.  

4.  In the processing of this case a staff advisory opinion was obtained from the Office of the Deputy Chief of Staff, G1 which recommends denial of the applicant’s request based on the fact that there was no record of the applicant having made a transfer while on active duty and when he was eligible and because the applicant would have incurred an additional 4 years of service which he never committed to. 

5.  The advisory opinion was provided to the applicant for comment and he responded with a two-page letter to the effect that he did attempt to make the transfer and was told that he could do it anytime and that preventing the transfer will impose a financial hardship on him and his family.

6.  A review of the available records failed to show evidence of the applicant attempting to transfer his post – 9/11 GI Bill benefits. 

7.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of the individual’s request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill; and 

	a.  has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or

	b.  has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute, or



	c.  is or becomes retirement eligible during the period from 1 August  2009 through 1 August 2013.  A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of reserve service.

8.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

9.  On 10 July 2009, the Army released the Post 9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  

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 14 October 2011 and there is no record of his transferring his educational benefits prior to his discharge.  More importantly, because he was not retirement eligible he would have been required to commit to an additional 4 years of active duty.  However, because he requested discharge for parenthood, it appears that he would not have been able to make that commitment.  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 applicant’s claim that he was not informed that he had to be on active duty to complete a transfer of his benefits prior to separation 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:

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.

ABCMR Record of Proceedings (cont)                                         AR20120012799



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ABCMR Record of Proceedings (cont)                                         AR20120012799



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