BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110022503 


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, correction of his military records to show he was offered the Post-9/11 GI Bill with subsequent approval to transfer educational benefits (TEB) under the Post-9/11 GI Bill to his family members.

2.  The applicant states he is requesting a determination of his eligibility for the Post-9/11 GI Bill.  He contends this educational program was never mentioned during any of his separation processing.

3.  The applicant provides copies of:

* DD Form 214 (Certificate or Transfer or Release from Active Duty) for the period ending 31 December 2008
* Fort Lewis Transition Center - Retirement Out-Processing Appointment Checklist
* DD Form 93 (Record of Emergency Data), dated 7 June 2008
* DA Form 4037 (Officer Record Brief), dated 4 September 2008

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 20 years, 2 months, and 18 days of creditable active service, the applicant retired from the Army on 31 December 2008 by reason of sufficient service for retirement.

3.  During the processing of this case, an advisory opinion was obtained from the Chief, Education Incentives Branch, Headquarters, U.S. Army Human Resources Command, Fort Knox, KY.  The advisory official recommended disapproval based on the fact that the applicant was not a member of the service on or after
1 August 2009; therefore, he was not eligible to transfer his Post-9/11 GI Bill education benefits to his family members.

4.  On 11 January 2012, 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.  He did not respond.

5.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives, 2642.  In July 2008, Congress passed a law for the Post-9/11 GI Bill that went into effect on 1 August 2009.

6.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.

7.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or
20 qualifying years as computed under Title 10, U.S. Code, section 12732:

	a.  service members eligible for retirement on 1 August 2009 – no additional service required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

	d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;

	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and

	f.  active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he may be eligible for TEB under the Post-9/11 GI Bill.

2.  The evidence clearly shows the applicant retired on 31 December 2008, prior to the implementation of the TEB under the Post-9/11 GI Bill, effective 1 August 2009.  Therefore, he did not meet the eligibility requirements for TEB under the Post-9/11 GI Bill.

3.  In view of the foregoing, 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)                                         AR20110022503



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ABCMR Record of Proceedings (cont)                                         AR20110022503



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