IN THE CASE OF:
BOARD DATE: 17 September 2013
DOCKET NUMBER: AR20130002299
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 members under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states:
* as it stands, policies prohibit him from transferring his educational benefits to his family members
* he retired on 1 February 2009, a few months before the Post-9/11 education benefits became effective
* his retirement is not in error; however, his decision to retire in February 2009 was done in error because of improper military information and advice
* his early retirement was unjust to his family and is denying them eligible benefits
* his February 2009 retirement date blocks his children's future
* a grave injustice of erroneous information has hurt his two high school seniors in need of financial support for college
* he would not be in his current position had he received correct retirement information
* he was led to believe all retirees leaving in 2009 would be eligible to transfer their Post-9/11 GI Bill benefits to their family members
* he could have retired after the provisions for the Post-9/11 GI Bill became effective
3. The applicant provides self-authored statements.
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. Orders 044-0314, issued by Headquarters, Joint Readiness Training Center, Fort Polk, LA, dated 13 February 2008, show the applicant would be released from active duty effective 31 January 2009 and placed on the Retired List the following day.
3. After having completed sufficient service for retirement, the applicant was retired on 31 January 2009 and placed on the Retired List on 1 February 2009.
4. He provides a self-authored statement indicating he was improperly counseled on the provisions of the Post-9/11 GI Bill benefits and as a result his family members are being denied needed financial support for college.
5. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for an exception to policy to transfer educational benefits to his family members under the TEB provision of the Post-9/11 GI Bill was carefully considered.
2. The law requires a member to be in an active status 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 this program was implemented. Further, the Army released the Post-9/11 GI Bill Implementation Policy on 10 July 2009, well after he received his retirement orders in 2008. As such, it was impossible for him to receive improper information and advice on a program prior to its existence.
3. The applicant's service and his sincerity are not in question. However, the requirements of this program are established by law and any changes to this law are not within the purview of this Board. There is neither an error nor an injustice in his case.
4. In view of the foregoing, there is no basis for transferring his education benefits under the TEB provision of the Post-9/11 GI Bill to his family members.
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) AR20130002299
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ABCMR Record of Proceedings (cont) AR20130002299
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