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ARMY | BCMR | CY2012 | 20120010782
Original file (20120010782.txt) Auto-classification: Denied

		

		BOARD DATE:	13 December 2012  

		DOCKET NUMBER:  AR20120010782 


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 to be allowed to transfer his Post-9/11 GI Bill education benefits to his spouse.

2.  The applicant states that while serving on active duty he was never informed that he could transfer the benefit to his spouse.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Orders D-10-116653.

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 enlisted in the Regular Army on 8 October 2003.  He completed training and was awarded military occupational specialty 68W (Health Care Specialist).  On 7 October 2007, he was honorably released from active duty for completion of required active service and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his service obligation.

3.  The applicant provides a copy of Orders D-10-116653, dated 11 October 2011, issued by U.S. Army Human Resources Command, Fort Knox, KY, which show he was honorably discharged from the USAR on 11 October 2011.

4.  During the processing of this case, an advisory opinion was obtained from the U.S. Army Human Resources Command, Chief, Education Incentives Branch, dated 9 October 2012, who states:

	a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  The law limits eligibility to transfer 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.

	b.  The applicant is not eligible to transfer benefits under the Post-9/11 GI Bill Transferability Program to his dependents because he was not a member of the service on or after 1 August 2009, which is a requirement established in law.

5.  On 16 October 2012, the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

6.  On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused education 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 and:

	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; or

	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; or

	
   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 duty or 20 qualifying years of Reserve service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, since he separated from the service prior to the implementation of the Post-9/11 GI Bill Transferability Program, he is not eligible to transfer benefits under the program to his spouse by law.

2.  The applicant served on active duty from 8 October 2003 to 7 October 2007.  The law requires a member to be on active duty or in the Selected Reserve at the time the individual requests the transfer.  The applicant was not on active duty or in the Selected Reserve at the time this program was implemented.  

3.  The requirements of this program are set in the law and any changes to this law are not within the purview of this Board.  There is neither an error nor an injustice in his case and as such, he is not entitled to 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 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)                                         AR20120010782



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ABCMR Record of Proceedings (cont)                                         AR20120010782



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