BOARD DATE: 12 November 2013
DOCKET NUMBER: AR20130006097
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 she be allowed to transfer her Post-9/11 GI Bill educational benefits to her son under the Transfer of Education Benefits (TEB) program.
2. The applicant states her non-eligibility to transfer her TEB to her son is unjust. She retired in Okinawa, where she continues to reside, on 1 June 2009 and the information on the TEB program was not made available to overseas locations until 1 August 2009. She did not start getting information on the TEB until 9 August 2009. She applied for the benefits but has been repeatedly told she is not eligible. As a 70 percent disabled retiree and single mother with one dependent son, it is unjust for her to be precluded from utilizing the TEB when she was not advised of the program until after she had retired. If she had received the proper information she would have adjusted her retirement date.
3. The applicant provides copies of her DD Form 214 (Certificate of Release or Transfer from Active Duty) and an e-mail explaining her denial of an exception to the law.
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, a retired Regular Army master sergeant, served on active duty for 23 years, 2 months, and 25 days, from 6 March 1986 through 31 May 2009, and was placed on the Retired List effective 1 June 2009.
3. In early 2008 the applicant submitted a request for voluntary retirement. Her application was approved by the U.S. Army Human Resources Command on 22 May 2008.
4. On 8 July 2008 the applicant commenced her out-processing with the submission of a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members).
5. United States Army Garrison Japan Orders 276-0012, dated 2 October 2008, directed the applicant be released from active duty effective 31 May 2009 and placed on the Retired List the following day.
6. On 2 January 2009, she was issued orders to proceed to the Transition Point for retirement with a reporting date of 14 May 2009 and a retirement date of 1 June 2009.
7. The record shows the applicant has one TEB qualifying dependents entered into the Defense Enrollment Eligibility Reporting System (DEERS).
8. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states any member of the Armed Forces on active duty on or after 1 August 2009 who is eligible for the Post-9/11 GI Bill may transfer their educational assistance benefits to a qualified dependent enrolled under the DEERS.
9. 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.
10. In similar cases, the Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, has recommended approval of an applicant's request only if an applicant left the military within 90 days following the implementation of the TEB Program.
DISCUSSION AND CONCLUSIONS:
1. The applicant commenced processing and was approved for retirement over a year prior to the date she was retired. Her retirement was effective almost a month before the criteria for the program was first released and two months prior to the effective date of the implementation of the TEB.
2. There is no provision in law for granting a service member entitlement to the TEB program if they were not in an active status on 1 August 2009.
3. Any correction by the ABCMR must comport with other laws. The Board may not ignore a requirement contained in or an outcome dictated by statute.
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) AR20130006097
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