IN THE CASE OF:
BOARD DATE: 17 October 2013
DOCKET NUMBER: AR20130004630
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 entitlement to transfer his educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he was never informed he was required to transfer his Post-9/11 GI Bill education benefits prior to his date of retirement.
3. The applicant provides no further evidence in support of his request.
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 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 May 1989, the applicant enlisted in the Regular Army. He completed his initial entry training and he was awarded military occupational specialty 88M
(Motor Transport Operator). He served through multiple periods of reenlistment or extension, in various positions of increased responsibility, and he attained the rank/grade of staff sergeant (SSG)/E-6.
3. On 31 July 2009, he was retired by reason of sufficient service for retirement and he was placed on the Retired List on 1 August 2009 in the rank of SSG. His DD Form 214 shows he completed 20 years, 2 months, and 6 days of creditable active service.
4. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill; and:
a. Has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or
b. Has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute; or
c. Is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013. A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of reserve service.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be entitled to transfer his education benefits under the provision of the TEB because he was not informed of the requirement to transfer his education benefits to his family members while still on active duty prior to his date of retirement.
2. The evidence of record shows he was retired from the Army on 31 July 2009. Accordingly, he was not on active duty or in an active status as a member of the Selected Reserve on 1 August 2009. The law requires a member to be in an active status at the time he/she requests the transfer. 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 was prior to 31 July 2009. Therefore, by law he is not eligible to transfer his educational benefits to his family members under the TEB provisions of the Post-9/11 GI Bill.
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) AR20110007920
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130004630
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140017881
The applicant requests transfer of his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to family members. The evidence of record shows the applicant was serving on active duty until his disability retirement on 26 January 2012. As he had over 10 years of active duty service, he would have been eligible to transfer any unused education benefits to his eligible family members through the TEB database.
ARMY | BCMR | CY2012 | 20120010851
The applicant had more than 20 years of service upon his retirement, but he was not eligible to transfer to either his spouse or his children because the law requires Soldiers to be in the service on or after 1 August 2009. c. A Soldier may only transfer to eligible family members. If the applicant had been in the service on 1 August 2009, he would not have incurred an additional service obligation, but he was not eligible because he left service prior to 1 August 2009. e. A Soldier must...
ARMY | BCMR | CY2011 | 20110005740
The applicant states he requested in August or September of 2008 to transfer his Montgomery GI Bill [Post 9/11 GI Bill] to his son; but, no records were found. 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 (emphasis added) because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009. The applicant contends he requested transfer of his...
ARMY | BCMR | CY2012 | 20120003999
There is no evidence in the applicant's military service records that shows he applied to the Department of Veterans Affairs (DVA) for education benefits for the Post 9/11 GI Bill benefits. The official stated the applicant is not eligible to transfer benefits under the Post - 9/11 GI Bill transferability program because Army and Department of Defense (DOD) policy requires a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits. The policy states,...
ARMY | BCMR | CY2012 | 20120008394
The applicant in this case had more than 20 years of service upon his retirement, but he was not eligible to transfer the benefit because the law requires Soldiers to be in the service on or after 1 August 2009. c. A Soldier may only transfer to eligible family members. 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...
ARMY | BCMR | CY2010 | 20100020596
A VA Form 22-1990E, dated 22 December 2009, shows he applied for and transferred Post - 9/11 GI Bill benefits to his daughter for her to attend college. The official stated the applicant is not eligible to transfer benefits under the Post - 9/11 GI Bill transferability program because Army and Department of Defense (DOD) policy requires a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits. The policy further states the Secretaries of the Military...
ARMY | BCMR | CY2012 | 20120008123
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. The law requires a member to be in an active status at the time he/she requests the transfer. 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...
ARMY | BCMR | CY2014 | 20140018354
It shows: * the applicant allocated 36 months of benefits to his spouse when he applied for TEB * the applicant reduced the total number of months his spouse could receive on 11 September 2014 * it was discovered the applicant did not fulfill the one year TEB service obligation requirement * review of the applicants record revealed his U.S. Army Reserve (USAR) service from 17 March 1989 to 26 September 1990 had to be included in his obligation requirement * his combined USAR and active duty...
ARMY | BCMR | CY2013 | 20130006591
The policy states any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill and: a. has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or b. has at least 10 years of service in the Armed Forces (active duty and/or...
ARMY | BCMR | CY2012 | 20120006987
The advisory official recommended approval of the applicant's request because the applicant left the military within 90 days of implementation of the program. The policy states, in part, that those who retire on or before 1 August 2009 are not eligible to transfer unused Post-9/11 GI Bill benefits by law because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009. As a result, the Board recommends that all Department of the Army records...