IN THE CASE OF:
BOARD DATE: 18 September 2012
DOCKET NUMBER: AR20120005868
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 transfer of his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his children.
2. The applicant states he was not informed that he needed to be on active duty to transfer this benefit. When the requirement was released he was already retired. He thinks he served proudly and earned the right to choose who this benefit transfers to. He is fully eligible for the benefit as he was on active duty until December 2004.
3. The applicant provides no additional documentation.
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. Having had prior Reserve service, the applicant was appointed as a second lieutenant in the U.S. Army Reserve and he executed an oath of office on 23 September 1984 with concurrent call to active duty. He served in staff and leadership positions and he attained the rank/grade of lieutenant colonel (LTC)/O-5 in the Regular Army.
3. On 31 December 2004, he was retired from active duty and on 1 January 2005, he was placed on the Retired List in the rank LTC. He completed 20 years, 3 months, and 8 days of creditable active service.
4. In the processing of this case, on 7 May 2012, an advisory opinion was received from the Chief, Education Incentives Branch, U.S. Army Human Resources Command. The advisory official recommended disapproval of the applicant's request and stated that Public Law 110-552 establishes legal limitations on the transferability of unfunded Post-9/11 GI Bill benefits and limits eligibility to 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. The applicant's last day in service was 31 December 2004. Therefore, he was ineligible to transfer his Post-9/11 GI Bill benefits.
5. On 8 May 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.
6. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. The policy states that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009. However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.
DISCUSSION AND CONCLUSIONS:
The applicant requests transfer of his Post-9/11 GI Bill educational benefits to his children under TEB. However, the program was not implemented until July 2009 and the law required a person to be on active duty on or after 1 August 2009 in order to be eligible for the program. He retired on 31 December 2004. As such, he was ineligible to transfer his educational benefits to his children; therefore, there is no basis for granting his 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) AR20120005868
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