IN THE CASE OF:
BOARD DATE: 24 September 2013
DOCKET NUMBER: AR20130001600
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, approval to transfer educational benefits to his spouse under the Transfer of Education Benefits provision of the
Post-9/11 GI Bill.
2. He states that prior to being released from active duty on 30 June 2009, he requested to transfer his Post-9/11 GI Bill educational benefits to his spouse; however, he was never notified that the transfer was completed. He assumed benefits would be transferred once he applied. He retired on 28 October 2010 without being briefed that his election to transfer his benefits had to be completed prior to his retirement date.
3. He provides his DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 27 July 2007 and 30 June 2009.
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 was honorably released from active duty and transferred to the U.S. Army Control Group (Individual Ready Reserve) effective 20 June 2009. He was transferred from the Individual Ready Reserve to the Retired Reserve in the rank/grade of lieutenant colonel/O-5 effective 29 October 2010.
3. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, Public Law 110-252, section 3020, 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. Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service. A Soldier must currently be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009.
4. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.
DISCUSSION AND CONCLUSIONS:
1. The requirement to transfer the benefits while a member is serving on active duty or in the Selected Reserve on or after 1 August 2009 is embedded in the law and a change to this law is not within the purview of this Board.
2. In this case, the applicant was transferred to the USAR Control Group (Individual Ready Reserve) on 30 June 2009. As a result, he was not a member of the Selected Reserve on 1 August 2009 and he was not eligible to transfer his benefits to his dependents.
3. There is neither an error nor an injustice in his case and, as such, he is not entitled to the 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.
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