IN THE CASE OF:
BOARD DATE: 1 November 2012
DOCKET NUMBER: AR20120008727
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 records to show eligibility to transfer his Post-9/11 GI Bill educational benefits under the Transfer of Educational Benefits (TEB) program to his son.
2. The applicant states, in effect, he was not told about the option to transfer his Post-9/11 GI Bill educational benefits to his son at the time of his retirement. A college Department of Veterans Affairs (VA) representative told him his son should be able to use his educational benefits if he was on active duty after 11 September 2001.
3. The applicant provides no supporting 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. The applicant served on active duty from 18 March 1987 through 31 July 2008, when he retired as a master sergeant (MSG)/E-8. He completed 21 years, 4 months, and 13 days of creditable active service.
3. Prior to his retirement the applicant completed a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members). On this form the applicant declined counseling for a number of items, including education benefits and options.
4. During the processing of this case, on 1 June 2012 an advisory opinion was obtained from the U.S. Army Human Resources Command (HRC) Chief, Education Incentives Branch. The advisory official outlined the applicant's service and the provisions for granting a transfer of benefits under Title 38, U.S. Code, chapter 33 (Post-9/11 GI Bill). The official stated the applicant did not meet the requirements for a favorable recommendation. He was not on active duty at the time the TEB database was made operational (29 June 2009) or on the earliest effective date a Soldier could transfer benefits (1 August 2009).
5. On 5 June 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.
6. An Office of the Under Secretary of Defense Directive-Type Memorandum
09-003, dated 22 June 2009, established the policy and procedures for implementing Title 38, U.S. Code, chapter 33. Included in the directive is the procedure for transferring educational benefits to eligible family members. The law states that any member of the Armed Forces (on active duty or Selected Reserve) serving on or after 1 August 2009, who is eligible for the Post-9/11
GI Bill can transfer their entitlement to their spouse or eligible child(ren).
DISCUSSION AND CONCLUSIONS:
1. The law providing for transfer of Post-9/11 educational benefits is very specific. A Soldier had to be in an active status on 1 August 2009 in order to take advantage of the transfer option.
2. The applicant retired on 31 July 2008, a year prior to the date registration for the TEB program commenced. Additionally, he declined educational benefits counseling prior to his retirement.
3. The applicant did not and does not meet the eligibility requirements for participation in the TEB program.
4. 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) AR20120008727
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ABCMR Record of Proceedings (cont) AR20120008727
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