IN THE CASE OF:
BOARD DATE: 12 September 2013
DOCKET NUMBER: AR20130001405
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 her records to show she transferred her Montgomery GI Bill (MGIB) educational benefits to her children under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to retiring from active duty.
2. The applicant states she lost her eye in a motor vehicle accident in August 2005 and underwent numerous surgeries.
a. She retired from the Army based on permanent physical disability.
b. She only used one semester of her educational benefits and was never briefed on the option to transfer her MGIB benefits.
3. The applicant provides no additional evidence. She references "about 400 pages" of documents located at the Department of Veterans Affairs Regional Office, Leeds, Massachusetts.
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. On 25 October 2002, the applicant enlisted in the Army National Guard of the United States (ARNGUS) for a period of 8 years and the Massachusetts ARNG (MAARNG) for a period of 6 years.
3. On 21 March 2003, she completed initial active duty training and was awarded military occupational specialty 88M (Motor Transport Operator).
4. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows the applicant was the driver of an automobile when she suffered an eye injury in a motor vehicle accident with a truck on 21 August 2005. The injury was in the line of duty.
5. On 11 March 2008, a physical evaluation board (PEB) found the applicant physically unfit due to traumatic injury to her left eye with blindness (40 percent) and chronic neck pain (10 percent) and recommended permanent disability retirement. The PEB proceedings were approved on 8 May 2008.
6. U.S. Army Physical Disability Agency, Washington, DC, Orders D129-07, dated 8 May 2008, released the applicant from duty in the ARNGUS and placed her on the Permanent Disability Retired List (PDRL) effective 13 June 2008.
7. A National Guard Bureau Form 22 (Report of Separation and Record of Service) shows the applicant was honorably discharged from the MAARNG on 13 June 2008 and transferred to the U.S. Army Reserve Control Group for placement on the PDRL.
8. Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members. This public law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.
a. The law identified the qualifying Title 10 and Title 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill.
b. The Post-9/11 GI Bill TEB Program was implemented on 1 August 2009.
c. Eligibility to transfer unused benefits is limited to those members of the U.S. Armed Forces who were 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 her MGIB educational benefits should be transferred to her children under the TEB provision of the Post-9/11 GI Bill because she was never briefed on the option to transfer her MGIB benefits.
2. Records show the applicant was serving in the ARNGUS and MAARNG on or after 11 September 2001 and she was placed on the PDRL on 13 June 2008. Thus, she is eligible to receive benefits under the Post-9/11 GI Bill for herself because she meets the basic requirements for entitlement.
3. The law provides that a service member must have been serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 in order to be eligible to transfer unused benefits to eligible family members.
4. The applicant was not serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. Therefore, she is not eligible for the
Post-9/11 GI Bill transferability option.
5. Considering all the evidence and information presented by the applicant, together with the evidence of record, 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 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) AR20130001405
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