BOARD DATE: 8 January 2013
DOCKET NUMBER: AR20120011877
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 military records to allow transferability of his Post 9/11 GI Bill benefits to his dependents.
2. The applicant states that he was not informed of the requirement to transfer the benefits to his dependents while still on active duty.
3. The applicant provides copies of his:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 9 July 2004 separation orders
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, due to disability, as a sergeant/E-5 effective 1 October 2004.
3. In the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Career Systems Division, Office of the Deputy Chief of Staff, G-1, Headquarters Department of the Army, Washington, DC. The advisory official recommended disapproval of the applicant's request. The applicant is not authorized to transfer his education benefits because he was not a member of the service on or after 1 August 2009, which is a requirement established by law.
4. On 2 October 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. No response was received.
5. 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.
6. Public Law 110-252 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 of the U.S. Army on or after 1 August 2009.
DISCUSSION AND CONCLUSIONS:
1. The Post 9/11 GI Bill program was not in effect during his period of military service. His last day of active duty was 1 October 2004. The law states only those individual who served on active duty on or after 1 August 2009 are eligible to transfer education benefits under the provisions of the Post 9-11 GI Bill.
2. In view of the foregoing, the applicant's request should be denied.
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) AR20110020816
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20120011877
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140010959
The evidence of record shows the applicant was transferred to the Retired Reserve on 3 September 2009 after completing more than 21 years of service. Based on the foregoing and as a matter of equity, his records should be corrected to show he transferred his benefits to his dependent under the Transfer of Education Benefits provisions of the Post-9/11 GI Bill. As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned...
ARMY | BCMR | CY2014 | AR20140011197
The applicant requests correction of his records to show he transferred his educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to retiring from military service. A DD Form 214 shows the applicant was honorably retired from active duty on 30 November 2004, based on sufficient service for retirement, and transferred to the U.S. Army Reserve (USAR) Control Group (Retired) effective 1 December 2004. The applicant...
ARMY | BCMR | CY2010 | 20100020391
The policy further states the Secretaries of the Military Departments will: * provide active duty participants and members of the Reserve Components (with qualifying active duty service), individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill * document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316 * provide those records to the Defense Manpower Data...
ARMY | BCMR | CY2015 | 20150001908
A Soldier must have six years of active duty in order to transfer GI Bill benefits." A service member was considered to be retirement eligible if he or she had completed 20 years of active service or 20 qualifying years of Reserve service. Notwithstanding the applicant's contentions, there is insufficient evidence that shows he submitted a request to transfer education benefits to his family members while in an active status prior to 2014.
ARMY | BCMR | CY2014 | 20140008797
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. 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. The policy states, in part, that those who retire on or before 1 August 2009 are, by law,...
ARMY | BCMR | CY2013 | 20130010694
The applicant requests correction of his records to show his education benefits were transferred to his eligible dependent in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. The available evidence shows the applicant was eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement. As a result, the Board recommends that all Department of the Army records of the individual concerned be...
ARMY | BCMR | CY2014 | 20140015351
The program to transfer education benefits to family members under TEB did not exist when he was released from active duty in 2004. The policy states 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...
ARMY | BCMR | CY2011 | 20110018668
The applicant requests approval of transfer of educational benefits (TEB) under the Post 9/11 GI Bill to his dependents. In view of the available evidence and the advisory opinion, it would be appropriate to correct his record to show he submitted a timely request to transfer his Post 9/11 GI Bill benefits to his dependents prior to his retirement. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant...
ARMY | BCMR | CY2011 | 20110008015
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 eligible to transfer benefits under the Post 9/11 GI Bill TEB Program to his dependents because he left the service within 90 days of the implementation of the program. The evidence of record shows the applicant retired from active duty on 31 October 2009, which is within 90 days of...
ARMY | BCMR | CY2012 | 20120009562
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. 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. Considering all the evidence and information presented by...