IN THE CASE OF:
BOARD DATE: 31 January 2013
DOCKET NUMBER: AR20120012138
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 his educational benefits were transferred to his eligible dependents under the Transfer of Education Benefits provision of the Post-9/11 GI Bill.
2. He states he was unable to transfer his Post 9/11 GI Bill benefits to his dependents due to the effective date of the program. He believes it is unjust that he did not have the same opportunity as others.
3. He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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. He was retired for length of service on 29 February 2008 after completing more than 24 years of active duty.
3. Public Law 110-252, section 3319, dated 22 June 2008, authorized the transfer of unused education benefits to eligible family members. The law provided that the Secretary of Defense would prescribe the implementation of the program. It also provided that eligible participants must be serving as a member of the Armed Forces when the transfer is executed.
4. On 22 June 2009, Department of Defense established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states that 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.
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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions have been noted. However, according to the applicable law and regulation, he is not eligible to transfer benefits under the Post-9/11 GI Bill transferability program. He was retired on 29 February 2008, 17 months before the program went into effect on 1 August 2009 and before existence of the law. Unfortunately, there are no provisions in the law for retroactive eligibility that will allow him to transfer his benefits.
2. While it is certainly understandable that he desires to transfer his benefits, he was not eligible to transfer his benefits when the program was implemented and there are no provisions to achieve a transfer in the applicants case. To do so would afford him a benefit not afforded to others in similar circumstances. Accordingly, there appears to be no basis to grant his request.
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) AR20120012138
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