IN THE CASE OF:
BOARD DATE: 9 October 2012
DOCKET NUMBER: AR20120007553
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, approval of an exception to policy to transfer his educational benefits to his spouse and daughters under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states the option to add his dependents was not available or offered at the time his benefits started and his spouse is trying to enroll in school presently.
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. The applicant was honorably retired and placed on the Retired List in the rank/grade of master sergeant/E-8 effective 1 November 2007 after completing 21 years, 8 months, and 4 days of creditable active service.
3. An advisory opinion from the Department of the Army Office of the Deputy Chief of Staff, G-1, dated 1 June 2012, recommended disapproval of the applicant's request to transfer his educational benefits. The opinion cited Public Law 110-252 which established eligibility for Post-9/11 GI Bill benefits and limited the transfer of 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.
4. The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal. No response was received.
5. On 22 June 2009, Department of Defense (DOD) guidance established the criteria for eligibility and transfer of unused educational benefits to eligible family members. 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, provided he or she:
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;
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;
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 service or 20 qualifying years of Reserve service; and
d. for those individuals who have an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service is required.
6. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits and detailed guidance on the administration of the program. This policy states, in part, that those who retire on or before 1 August 2009 are not eligible to transfer unused Post-9/11 GI Bill benefits by law.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests approval of an exception to policy to transfer his educational benefits to his spouse and daughters under the TEB provision of the Post-9/11 GI Bill.
2. The law establishing eligibility to transfer educational benefits was not implemented until July 2009 and required individuals to be on active duty as of 1 August 2009. His last day on active duty was 31 October 2007. Therefore, by law, he is not eligible to transfer benefits under the program to his family members.
3. In view of the above, there is no basis to grant the 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 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) AR20120007553
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