Search Decisions

Decision Text

ARMY | BCMR | CY2012 | 20120002603
Original file (20120002603.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120002603 


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 elected transfer of his educational benefits to his family members under the Post-9/11 GI Bill Transferability Program.

2.  The applicant states he retired on 30 September 2008 and the program started in August 2009.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

 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 and 29 days of creditable active service, the applicant retired from the Regular Army on 30 September 2008 in the rank/grade of sergeant first class (SFC)/E-7.

3.  During the processing of this case, on 13 March 2012, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch.  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.  The advisory official recommended denial of the applicant’s request.

5.  On 14 March 2012, 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.

6.  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 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.
7.  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 retired on 30 September 2008, approximately 1 year prior to the implementation of the Post-9/11 GI Bill Transferability Program, he is not eligible to transfer benefits under the program to his family members.

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)                                         AR20120002603



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002603



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2011 | 20110019878

    Original file (20110019878.txt) Auto-classification: Denied

    The applicant requests adjustment of the date he was transferred to the Retired Reserve so he can transfer educational benefits under the Transfer of Educational Benefits (TEB) provisions of the Post-9/11 GI Bill to his family members. The official stated the applicant's last day of service with the ARNG was 31 August 2010 but he did not transfer his benefit prior to this date. c. A Soldier may only transfer to eligible dependents.

  • ARMY | BCMR | CY2013 | 20130017053

    Original file (20130017053.txt) Auto-classification: Denied

    The applicant states he was not properly informed of the requirement to transfer educational benefits under the TEB provision of the Post-9/11 GI Bill to his immediate family members prior to his retirement from the U.S. Army Reserve. 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. His request to correct his record to show he was eligible to transfer his Post-9/11 GI Bill benefits has...

  • ARMY | BCMR | CY2013 | 20130015885

    Original file (20130015885.txt) Auto-classification: Denied

    c. she was given information that was not applicable to her. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. 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.

  • ARMY | BCMR | CY2012 | 20120006838

    Original file (20120006838.txt) Auto-classification: Denied

    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. The evidence of record shows he was honorably retired...

  • ARMY | BCMR | CY2014 | AR20140009751

    Original file (AR20140009751.txt) Auto-classification: Denied

    The applicant states, in effect: * he retired on 1 August 2010 * he transferred education benefits to one child before he retired * his retirement briefing did not notify him that, for his other two sons to be eligible, he needed to transfer a portion of the education benefit to each * he was told nothing could be done, but recently learned he could request relief from the Board 3. The policy states eligible individuals include any member of the Armed Forces on or after 1 August 2009 who,...

  • ARMY | BCMR | CY2013 | 20130005723

    Original file (20130005723.txt) Auto-classification: Approved

    The applicant requests, in effect, transfer of educational benefits under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill to his family members. 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. As a result, the Board recommends that all Department of the Army...

  • ARMY | BCMR | CY2013 | 20130000152

    Original file (20130000152.txt) Auto-classification: Approved

    Further, § 3020 Public Law 110-252, 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. Prior to retirement, she did not apply for transfer of benefits while serving on active duty. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed her application and the Army approved...

  • ARMY | BCMR | CY2011 | 20110006277

    Original file (20110006277.txt) Auto-classification: Denied

    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. 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...

  • ARMY | BCMR | CY2012 | 20120009421

    Original file (20120009421.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 13 December 2012 DOCKET NUMBER: AR20120009421 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Military Personnel Records and advisory opinions (if any). However, since he retired on 31 December 2006 which is prior to implementation of the Post-9/11 GI Bill, he is not eligible to transfer benefits to family members under this program.

  • ARMY | BCMR | CY2011 | 20110000464

    Original file (20110000464.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 29 September 2011 DOCKET NUMBER: AR20110000464 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. 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...