IN THE CASE OF:
BOARD DATE: 25 April 2013
DOCKET NUMBER: AR20120018321
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 eligibility to transfer his Post-9/11 GI Bill educational benefits under the Transfer of Educational Benefits (TEB) program to his daughter.
2. The applicant states the details related to transfer of Post-9/11 GI Bill educational benefits was not specified, clear, or finalized at the time of his retirement and was not adequately explained during his transition. He would like to transfer his education benefit to his daughter so she can get the education she needs in life.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 93(E) (Record of Emergency Data).
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 served on active duty from 5 October 1989 through 31 May 2007 at which time he was retired by reason of sufficient service for retirement in the rank/grade of staff sergeant (SSG)/E-6. He completed 20 years and 19 days of creditable active service.
3. Office of the Under Secretary of Defense Directive-Type Memorandum
09-003, dated 22 June 2009, established the policy and procedures for implementing Title 38, U.S. Code, chapter 33. Included in the directive is the procedure for transferring educational benefits to eligible family members. The law states that any member of the Armed Forces (on active duty or Selected Reserve) serving on or after 1 August 2009, who is eligible for the Post-9/11 GI Bill, can transfer their entitlement to their spouse or eligible child(ren).
DISCUSSION AND CONCLUSIONS:
1. The law providing for transfer of Post-9/11 educational benefits is very specific. A Soldier had to be in an active status on 1 August 2009 in order to take advantage of the transfer option.
2. The applicant retired on 1 June 2007, over 2 years prior to the date registration for the TEB program commenced. The program was not made retroactive for personnel who retired prior to 1 August 2009. As such, the applicant does not meet the eligibility requirements for participation in the Post-9/11 GI Bill TEB program.
3. 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) AR20120018321
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ABCMR Record of Proceedings (cont) AR20120018321
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