IN THE CASE OF:
BOARD DATE: 14 September 2013
DOCKET NUMBER: AR20130001853
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 an exception to policy to transfer educational benefits to his family member (son) under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he was never counseled or informed of the possibility of transferring this benefit to his son. He became aware of this program after retirement.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 2008.
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. Having prior active and inactive service, the applicant enlisted in the Regular Army on 30 December 1991. He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.
3. He retired on 31 January 2008 and he was placed on the Retired List in the rank/grade of SFC/E-7 on 1 February 2008. He completed 20 years, 1 month, and 1 day of active service.
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 for administration of the program. The policy states, in part, that 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. However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.
DISCUSSION AND CONCLUSIONS:
1. The applicant served in the Regular Army from 30 December 1991 to 31 January 2008. The law requires a member to be serving on active duty or in the Selected Reserve on or after 1 August 2009 at the time he/she requests the transfer. The applicant was neither on active duty nor in the Selected Reserve at the time the program was implemented. Therefore, he is not eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his family member.
2. The requirements of this program are set in the law and any changes to the law are not within the purview of this Board. There is neither an error nor an injustice in his case and, as such, he is not entitled to the requested relief. 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 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) AR20130001853
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ABCMR Record of Proceedings (cont) AR20130001853
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