IN THE CASE OF:
BOARD DATE: 3 January 2013
DOCKET NUMBER: AR20120009562
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 correction of his records to show he transferred his Montgomery GI Bill (MGIB) educational benefits to his spouse and children under the Transfer of Education Benefits provision of the Post-9/11 GI Bill prior to separating from the service.
2. The applicant states he was not made aware that he could transfer his MGIB educational benefits to his dependents prior to being discharged. He has 33 months of eligibility remaining of his MGIB educational benefits and he would like to transfer the remaining benefits to his dependents.
3. The applicant provides a copy of his discharge orders 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. After having had prior service, he enlisted in the Alabama ARNG on 20 March 2000 in the rank of specialist/pay grade E-4.
3. Joint Force Headquarters Alabama National Guard, Montgomery, AL, Orders 307-558, dated 3 November 2006, honorably discharged the applicant from the ARNG and as a Reserve of the Army effective 30 November 2006.
4. A review of the applicant's ARNG Annual Statement of Retirement Points fails to show any evidence that he was mobilized on or after 11 September 2001.
5. In the processing of this case, an advisory opinion was obtained from the Acting Chief, Personnel Policy Division, National Guard Bureau, Arlington, VA.
a. The advisory official does not recommend administrative relief.
b. He notes the applicant did not perform sufficient qualifying Title 10 or Title 32 service on or after 11 September 2001 to gain eligibility for Post-9/11 GI Bill benefits before he was discharged from military service. Specifically, the applicant was not mobilized under Title 10 or Title 32. In addition, he was discharged from the ARNG prior to implementation of the Post-9/11 GI Bill transferability benefit, which was 1 August 2009. Therefore, he is not eligible to transfer his educational benefits to his dependents.
6. On 5 November 2012, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents. To date, a response has not been received from the applicant.
7. Public Law 110-252 (Supplemental Appropriations Act, 2008) provides authority to transfer unused educational benefits to family members. This law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer to one or more of the specified dependents.
a. The law identified the qualifying Title 10 and Title 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill.
b. The Post-9/11 GI Bill Transfer of Educational Benefits Program was implemented on 1 August 2009.
c. Eligibility to transfer unused benefits is limited to those members of the U.S. Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his MGIB educational benefits should be transferred to his dependents under the Post-9/11 GI Bill transferability option because he was not made aware that he could transfer his MGIB educational benefits to his dependents prior to being discharged.
2. Records show the applicant was serving in the Alabama ARNG on or after 11 September 2001 and he was honorably discharged on 30 November 2006.
3. The evidence of record shows that a service member must have performed qualifying service on or after 11 September 2001 to gain eligibility for the
Post-9/11 GI Bill and he or she must have been serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
4. There is no evidence of record that the applicant was mobilized on or after 11 September 2001 to obtain eligibility to transfer his educational benefits to his dependents. In addition, he was not serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
5. Considering all the evidence and information presented by the applicant together with the evidence of record, there is no basis for granting 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.
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