IN THE CASE OF: BOARD DATE: 26 March 2015 DOCKET NUMBER: AR20140013148 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 correction of his records to show he transferred his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to retiring from military service. 2. The applicant states that he retired from active duty on 31 July 2009 and was placed on the retired list effective 1 August 2009. a. During his Army Career Alumni Program (ACAP) briefing it was stated that the approval date for the Post-9/11 GI Bill TEB was not known. b. He was on transition leave when the announcement was made. He was not informed of the TEB cut-off date (retirement date in this case). Therefore, he did not ask to extend nor was he offered the opportunity to extend his retirement date beyond 1 August 2009 so that he could transfer his educational benefits to his family members. He discovered this injustice in September 2009 and he recently was made aware that he could appeal the matter. 3. The applicant provides no documentary evidence in support of his application. 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 (RA) on 19 February 1986. Through a series of reenlistments in the RA, he continued to serve on active duty. He attained the rank of sergeant first class (E-7) on 1 December 2002. 3. A DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members) shows the applicant received ACAP counseling on his education benefits on 30 September 2008. 4. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably retired from active duty on 31 July 2009 based on sufficient service for retirement and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired) effective 1 August 2009. He had completed 23 years, 5 months, and 12 days of total active duty service. 5. A review of the applicant's military personnel records failed to reveal evidence that he sought additional counseling on his education benefits subsequent to 30 September 2008 or that he requested to transfer educational benefits to any of his family members. 6. Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused education benefits to eligible family members. The Public Law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic education assistance under this chapter to elect to transfer entitlement to unused education benefits to one or more of the specified family members. a. An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least: (1) 6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; or (2) the years of service as determined in Army regulations and established by the Secretary of the Army. b. An individual approved to transfer an entitlement to education assistance under this section may transfer the individual's entitlement, as follows: (1) to the individual's spouse; (2) to one or more of the individual's children; or (3) to a combination of the individuals identified above. c. Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his records should be corrected to show he elected to transfer his Post-9/11 GI Bill educational benefits to his dependents because he was not informed of the approved cut-off date nor was he offered the opportunity to extend his retirement date beyond 31 July 2009 so that he could transfer his education benefits to his family members. 2. The sincerity of the applicant's comments is not in question. However, there is no evidence of record that shows there was a requirement to offer service members the opportunity to change their approved retirement date in order to satisfy the TEB provision of the Post-9/11 GI Bill. 3. Records show the applicant was transferred to the USAR Control Group (Retired) effective 1 August 2009. 4. The applicant was not serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. Therefore, he is not eligible for the Post-9/11 GI Bill transferability option. 5. The law provides that a service member must have been serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 in order to be eligible to transfer unused benefits to eligible family members. The ABCMR does not have authority to grant a waiver of the eligibility criteria established in the statute. 6. Considering all the evidence and information presented by the applicant, together with the evidence of record, there is no 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) AR20140013148 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140013148 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1