IN THE CASE OF:	  

		BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120018181 


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 transfer his educational benefits to his children under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

	a.  House of Representative (H.R.) Bill 3557 would have allowed the TEB of benefits for Veterans who retired between 9 December 2001 and 
1 August 2009;

	b.  at the time of his retirement he was not afforded the opportunity to transfer his Montgomery GI Bill (MGIB) Post-9/11 educational benefits to his family members due to the fact this entitlement only became available after he retired; and

	c.  transfer of Post 9/11 GI Bill benefit to veterans who believe they were not properly informed of the opportunity to transfer entitlements while sill in service should be told that they can request a correction of military records to allow for transferability of benefits.

3.  The applicant submitted 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 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's DD Form 214 shows that on 31 August 2006 he retired by reason of sufficient service for retirement.  He completed 20 years and 25 days of creditable active Regular Army (RA) service.

3.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, H.R., 2642.  In July of 2008, Congress passed a law for the Post-9/11 GI Bill that went into effect on 1 August 2009.

4.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  The general eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active service.

	b.  Service members also must have served on active duty in the RA or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.

5.  Active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends H.R. Bill 3557 would have allowed him to transfer benefits to his family members under the TEB provision since he was not afforded the opportunity to do so before he retired.

2.  There is no evidence nor did he submit any evidence that shows H.R. 3557 was passed into law.  Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law 110-252, H.R. 2642 that was passed in 2008 to be effective 2009.

3.  DOD established the criteria for the TEB provision of the Post-9-11 GI Bill on 22 June 2009.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  Therefore, this information would not have been available to the applicant prior to the effective date of his retirement.

4.  Evidence of record shows he voluntarily retired on 31 August 2006 by reason of sufficient service for retirement.  Implementation guidance was not established until the summer of 2009, and the TEB on-line database was not operational until 29 June 2009.  He could not have been eligible because he departed Army control before any of the details were finalized.

5.  The law requires a member to be in an active status at the time he/she requests the transfer.  Those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  The applicant was not in an active status on or after 1 August 2009; therefore, he is not eligible to transfer his educational benefits to his family members under the TEB provision of the Post-9/11 GI Bill.

6.  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)                                         AR20120018181



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120018181



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1