BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110011537 


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, transfer of his educational benefits to his wife under the Post 9/11 GI Bill Transferability Program.
 
2.  The applicant states:

* he was advised by the Defense Manpower Data Center (DMDC) to apply to this Board
* the Transfer of Education Benefits (TEB) website only lists his name and no further information
* his wife's name should be listed on the TEB site
* he has a Department of Veterans Affairs (DVA) Certificate of Eligibility stating he and other eligible persons were approved for 36 months of benefits under the Reserve Educational Assistance Program (REAP)

3.  The applicant provides:

* his DD Form 214
* a DVA Certificate of Eligibility
* an extract of VA Pamphlet 22-05-1 (REAP)
* emails 
* four letters to and from his Congressman
* a news article titled, "Your New GI Bill"
* two letter from the DVA


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.  After completing more than 29 years of qualifying service, the applicant was transferred to the Retired Reserve on 1 June 2004.  He was recalled to active duty on 14 June 2004 and he served until 25 April 2008.  On 26 April 2008, the applicant was placed back into a Retired Reserve status.

3.  During the processing of this case, on 12 September 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who recommended denial of the applicant's request.  The advisory official states, in summary:

	a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.

	b.  The applicant is not eligible to transfer benefits under the Post 9/11 GI Bill Transferability Program to his dependent because he was not a member of the service on or after 1 August 2009, which is a requirement established in law.

4.  On 12 September 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 26 September 2011, the applicant responded indicating:

* he had contacted his Congressman in January 2009 and believes he was eligible for the Post 9/11 transfer of benefits to his wife at the time
* he attempted to allocate his benefits to his wife using the TEB website but his actions were blocked due to his wife's data not being present in the Defense Enrollment Eligibility Reporting System (DEERS)
* his wife's data was not listed since he had transitioned from active duty back to the Reserve Retired
* since his status as a retired recall was exceptional and caused the blocking of his allocation of benefits prior to 1 August 2009, he requests the Board reject the G-1 recommendation and grant his request

5.  On 22 June 2009, Department of Defense (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 eligible service in order to transfer education benefits to a spouse and at least 10 years of eligible service to transfer to eligible children;

	b.  a Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in the service on 1 August 2009;

	c.  is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013;

	d.  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.

6.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, since he was returned to the Retired Reserve on 25 April 2008 and after being recalled for the period 14 June 2004 to 25 April 2008, over a year prior to the implementation of the Post 9/11 GI Bill Transferability Program on 1 August 2009, he is ineligible to transfer benefits under the program to his wife.


2.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices he made in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20110011537



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ABCMR Record of Proceedings (cont)                                         AR20110011537



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