IN THE CASE OF: BOARD DATE: 29 April 2014 DOCKET NUMBER: AR20130015078 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 his retirement date be changed from 31 July 2009 to 1 August 2009 to allow him eligibility to transfer his educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. He states the record of his retirement date falls one day short of eligibility to transfer his Post-9/11 GI Bill benefit to his family member. 3. He provides a self-authored statement. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 16 July 1982 and continued to serve on active duty through a series of reenlistments. 3. In a 21 September 2007 memorandum, the U.S. Army Human Resources Command, Chief, Force Alignment Division approved the applicant's request for retention on active duty beyond his Retention Control Points as an exception to policy (ETP) for 12 months. The memorandum cited that this approval limited his retention through 31 July 2009. 4. Orders 311-2244 were published by Headquarters, U.S. Infantry Center, Fort Benning, GA on 6 November 2008 released him from active duty effective 31 July 2009. On the date following, he was placed on the retired list. These orders show his effective date of retirement as 31 July 2009. 5. Accordingly, he was honorably retired on 31 July 2009 in the rank/pay grade of master sergeant/E-8 after completing 27 years, 0 months, and 15 days of active service. 6. His DD Form 214 shows his separation date this period as 31 July 2009. 7. In April 2012, he applied to this Board for an ETP to transfer education benefits under the Transfer Education Benefits provision of the Post-9/11 GI Bill to his family member. His request was denied on 4 January 2013. 8. He provided a self-authored statement in which he stated: a. he requests that his records be corrected to indicate he is eligible to transfer his education benefits to his dependent child. b. he believes the decision to deny his request to do so was unjust because he was not properly counseled. If the requirements had been adequately explained to him, he would have served on active duty longer. c. he was told that since his effective date of retirement was 31 July 2009, he would be eligible to transfer his benefits. d. he strongly believes that since there is only one day in question, it should be waived. e. he is merely asking that a benefit he earned be transferred to his child. There is no additional cost to the government. 9. Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214 and is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. 10. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible individual is 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 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. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows he enlisted in the Regular Army on 16 July 1982. 2. He was retired from active duty on 31 July 2009, which is appropriately shown on his DD Form 214. 3. His discharge orders, dated 6 November 2008 confirm he was retired on 31 July 2009. In addition, a HRC memorandum shows his retention on active duty was limited through 31 July 2009. Therefore, his DD Form 214 properly reflects he was retried on 31 July 2009. 4. Therefore, there is no basis for correcting his DD Form 214 to show any other separation date. 5. Since he retired on 31 July 2009 prior to implementation of the Post-9/11 GI Bill TEB Program, he is not eligible to transfer benefits under this provision to his dependents by law. 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) AR20130015078 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130015078 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1