IN THE CASE OF:
BOARD DATE: 16 April 2013
DOCKET NUMBER: AR20120017347
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 transfer of his Post-9/11 GI Bill benefits to his dependents.
2. The applicant states he was never given the option to transfer benefits during his separation processing.
3. The applicant provides no additional 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 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. The applicant's record confirms he was discharged from the Army National Guard and transferred to the Retired Reserve effective 1 August 2009.
3. In July of 2008, Congress passed a law for the Post-9/11 GI Bill that went into effect on 1 August 2009. Service members who separate, retire, transfer to the Retired Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request to correct his record to show he was eligible to transfer his Post-9/11 GI Bill benefits 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 transfer of benefits. The record contains orders confirming the applicant was transferred to the Retired Reserve on 1 August 2009. As a result, he was not in an active status on the effective date of the program and equity relief in this case would not be appropriate given it would be contrary to law.
2. In view of the foregoing, 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) AR20120017347
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ABCMR Record of Proceedings (cont) AR20120017347
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