IN THE CASE OF:
BOARD DATE: 1 November 2012
DOCKET NUMBER: AR20120008864
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 authorization to transfer his Post-9/11 GI Bill benefits to his family members.
2. The applicant states he was medically discharged in 2005 and he was not informed of his right to transfer his Post-9/11 GI Bill benefit to his eligible family members. He states he was told to go to the Department of Veterans Affairs (VA) to file a claim for compensation. He was never informed about his GI Bill that he did not use and how he could transfer them to his children or spouse.
3. The applicant provides no documentary evidence in support of his request.
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 discharged from the Puerto Rico Army National Guard (PRARNG) and as a Reserve of the Army on 11 July 2005. The NGB Form 22 (Report of Separation and Record of Service) he was issued at the time shows he was discharged under the provisions of National Guard Regulation 600-200, paragraph 8-26j(1), by reason of being medically unfit for retention.
3. In connection with the processing of this case, on 9 October 2012, an advisory opinion was obtained from the National Guard Bureau (NGB) Chief, Personnel Policy Division recommending denial of the applicant's request. The advisory official states the law governing the transferability of unused Post-9/11 GI Bill benefits places legal limitations on transferability. It limits the eligibility to transfer unused Post-9/11 GI Bill benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 and who have 6 years of eligible service regardless of the reason for separation. The applicant's record shows his last day of service in the ARNG was 11 July 2005, and a result, he was not in an active status on 1 August 2009. Although he was eligible for the Post-9/11 GI Bill, he was not eligible to transfer the benefits to his family members.
4. The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. On 10 October 2012, the applicant responded by email indicating he understood that eligibility for the benefit did not begin until 2009 and he was discharged in 2005; therefore, he had no problems with the advisory opinion.
5. The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives, 2642. In July of 2008, Congress passed a law for the Post-9/11 GI Bill that went into effect on 1 August 2009.
6. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. General eligibility criteria are as follows:
a. Service members must have accrued specific qualifying active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.
b. Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.
DISCUSSION AND CONCLUSIONS:
The applicant's request to correct his record to show he was eligible to transfer his Post-9/11 GI Bill benefits to his eligible family members has been carefully considered. However, the governing law is very specific in requiring that a member be in an active status on 1 August 2009 in order to qualify for the program. The applicant was honorably discharged from the PRARNG on 11 July 2005. Therefore, 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) AR20120008864
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