IN THE CASE OF: BOARD DATE: 14 August 2012 DOCKET NUMBER: AR20120003314 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, that he be granted an exception to policy to the Post-9/11 GI Bill that will allow him to transfer his education benefits to his dependents. 2. The applicant states that he was just informed of the Post-9/11 GI Bill transfer in January 2012 and desires to transfer his benefits to his children. 3. The applicant provides a copy of his DD Form 214. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 24 April 1984. He completed his training and continued to serve through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 1 August 2001. 2. He was serving in a troop program unit (TPU) when he was ordered to active duty on 7 December 2003 in support of Operation Iraqi Freedom. He deployed to Iraq and Kuwait from 18 February 2004 to 11 February 2005 and on 13 March 2005 he was honorably released from active duty (REFRAD) due to completion of required service. 3. His records show that he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year letter) on 26 May 2004. 4. On 22 September 2006 the applicant was transferred to the USAR Control Group (Retired). 5. In the processing of this case a staff advisory opinion was obtained from the U.S. Army Human Resources Command, which 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 or as a member of the Selected Reserve on or after 1 August 2009, which is a requirement established in law. However, the applicant was not on active duty or serving as a member of the Selected Reserve when the law went into effect. Accordingly, the applicant is not eligible to transfer his benefits. The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board. 6. 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. 7. On 22 June 2009, the Office of the Under Secretary of Defense released Directive-Type Memorandum 09-003 – Post-9/11 GI Bill which 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 transferred from the Selected Reserve to the Retired Reserve on 22 September 2006, well before the program went into effect on 1 August 2009. Unfortunately, there are no provisions in the law for retroactive eligibility that will allow him to transfer his benefits. 2. While it is certainly understandable that the applicant desires to transfer his benefits, he was not eligible to transfer his benefits when the program was implemented and there are no provisions to effect a transfer in the applicant’s case. To do so would afford him a benefit not afforded to others in similar circumstances. Accordingly, there appears to be no basis to grant his request. 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) AR20120003314 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120003314 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1