BOARD DATE: 5 April 2012
DOCKET NUMBER: AR20110019201
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 educational benefits under the transferability of education benefits (TEB) provision of the
Post-9/11 GI Bill to his children.
2. The applicant states he retired without being informed about the TEB by the unit administrator in 2006.
3. The applicant provides no additional evidence.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. After completing sufficient service for retirement, the applicant retired on 28 May 2006 in the rank/grade of staff sergeant (SSG)/E-6.
3. During the processing of this case, on 14 November 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, dated 14 November 2011. The advisory official states:
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 family members because he was not a member of the service on or after 1 August 2009, which is a requirement established in law.
4. On15 November 2011, the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.
5. Department of Defense (DOD) memorandum, dated 22 June 2009, established the policy, assigned responsibilities, and prescribed the procedures under Title 38, U.S. Code, chapter 33 for carrying out the Post-9/11 GI Bill. This included establishing the policy for authorizing the TEB in accordance with
Title 38, U.S. Code, section 3319. 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.
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:
The applicant's contentions were carefully considered. However, since he retired in 2006, prior to implementation of the Post-9/11 GI Bill Transferability Program, by law he is not eligible to transfer benefits under the program to his family members.
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) AR20110019201
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