IN THE CASE OF:
BOARD DATE: 18 April 2013
DOCKET NUMBER: AR20120018202
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 show he was eligible to Transfer his Educational Benefits (TEB) under the Post-9/11 GI Bill to his daughter.
2. The applicant states he never knew he had to be on active duty in order to transfer his TEB to his daughter.
3. The applicant provides no additional documentation.
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. On 31 July 2009, the applicant was retired and transferred to the U.S. Army Reserve Control Group (Retired). He had attained the rank of sergeant first class, pay grade E-7, and had completed 22 years, 4 months, and 12 days of creditable active duty service.
3. During the processing of this case, an unfavorable advisory opinion was obtained from Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, Enlisted Professional Development Branch, which recommended denying administrative relief to the applicant because he was not on active duty or a member of the Selected Reserves on or after 1 August 2009.
4. On 20 November 2012, a copy of the advisory opinion was sent to the applicant for his information and to provide him an opportunity to rebut. No response was received.
5. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Further, section 3020, 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 on or after 1 August 2009.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected to show he was eligible to Transfer his Educational Benefits under the Post-9/11 GI Bill to his daughter. He argues that he did not know he had to be on active duty in order to be eligible to transfer his TEB.
2. The available evidence clearly shows that the applicant was separated from active duty on 31 July 2009. Soldiers must have been on active duty or a member of the Selected Reserve on or after 1 August 2009 to be eligible to transfer their 9/11 GI Bill benefit. Accordingly, the applicant did not meet the requirements.
3. In view of the above, 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) AR20120018202
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ABCMR Record of Proceedings (cont) AR20120018202
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