Search Decisions

Decision Text

ARMY | BCMR | CY2012 | 20120007553
Original file (20120007553.txt) Auto-classification: Denied

		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



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120007553



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2012 | 20120013646

    Original file (20120013646.txt) Auto-classification: Denied

    The applicant requests, in effect, correction of his records to show he elected to transfer his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. A Soldier must initially request to transfer benefits on the DOD TEB online database. However, there is no evidence of record and he provided no evidence which shows he attempted to transfer his Post 9/11 GI Bill benefits to his dependents other than his daughter (Michelle)...

  • ARMY | BCMR | CY2014 | 20140000824

    Original file (20140000824 .txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 14 August 2014 DOCKET NUMBER: AR20140000824 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. However, the evidence of record shows that, for whatever reason, he only transferred the benefits to his wife; he did not transfer any educational benefits in the TEB online database to either of his daughters. He has not provided sufficient evidence to show he added all of his eligible dependent's into the TEB database prior to or at the time of retirement and allocated...

  • ARMY | BCMR | CY2014 | 20140000824

    Original file (20140000824.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 14 August 2014 DOCKET NUMBER: AR20140000824 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. However, the evidence of record shows that, for whatever reason, he only transferred the benefits to his wife; he did not transfer any educational benefits in the TEB online database to either of his daughters. He has not provided sufficient evidence to show he added all of his eligible dependent's into the TEB database prior to or at the time of retirement and allocated...

  • ARMY | BCMR | CY2011 | 20110007920

    Original file (20110007920.txt) Auto-classification: Denied

    A Soldier must be currently on active duty or a member of the Selected Reserves at the time of transfer of education benefits to his or her dependent (on or after 1 August 2009). The applicant in this case had more than 20 years of service upon his retirement, so he was eligible to transfer to either his spouse or children (if he completed the request before leaving military service). He was also eligible to transfer his education benefits to his dependent(s) under the TEB prior to his...

  • ARMY | BCMR | CY2012 | 20120011060

    Original file (20120011060.txt) Auto-classification: Approved

    The applicant requests approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to her daughter. The evidence of record shows the applicant retired from active duty on 31 October 2009 which is within 90 days of the implementation of the program. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she filed her application and the Army approved her request to transfer Post-9/11 GI Bill...

  • ARMY | BCMR | CY2011 | 20110020474

    Original file (20110020474.txt) Auto-classification: Denied

    The applicant requests approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to his dependent daughter. The applicant is not eligible to transfer benefits under the Post-9/11 GI Bill Transferability Program to his daughter because he was not on active duty or a member of the Selected Reserve on or after 1 August 2009 which is a requirement established in law. The policy further states the Secretaries of the Military Departments will provide active duty participants...

  • ARMY | BCMR | CY2012 | 20120005622

    Original file (20120005622.txt) Auto-classification: Denied

    A VA Certificate of Eligibility, dated 23 February 2012, shows the applicant was approved to transfer 36 months of education benefits to her daughter under the Post 9/11 GI Bill. The applicant had nearly 12 years of service as of the program’s implementation date of 1 August 2009; therefore, she was eligible to transfer to either her spouse or her children. She transferred benefits to her dependent on 19 January 2012. d. A Soldier must also agree to serve the prescribed additional service...

  • ARMY | BCMR | CY2012 | 20120008413

    Original file (20120008413.txt) Auto-classification: Approved

    c. A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer benefits to eligible children. The applicant had more than 25 years of service upon her retirement, so she was eligible to transfer benefits to either her spouse or children if she had completed the request before leaving military service. As a result, the Board recommends that all Department of the Army records of the...

  • ARMY | BCMR | CY2011 | 20110016518

    Original file (20110016518.txt) Auto-classification: Denied

    The applicant states the Army Education Incentives Branch denied his request to transfer his Post 9/11 GI Bill education benefits to his daughter on 4 August 2011 because Department of Defense and Army policies require a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits. 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; and d. for those...

  • ARMY | BCMR | CY2012 | 20120008394

    Original file (20120008394.txt) Auto-classification: Denied

    The applicant in this case had more than 20 years of service upon his retirement, but he was not eligible to transfer the benefit because the law requires Soldiers to be in the service on or after 1 August 2009. c. A Soldier may only transfer to eligible family members. The policy states, in part, 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...