BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130006591 


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 transfer of his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his spouse.

2.  The applicant states he was a member of the Army until his retirement in 2007.  He served honorably after 9-11 and is entitled to Post-9/11 GI Bill benefits.  When he retired in 2007, Post-9/11 GI Bill benefits did not exist yet.  He could not transfer the benefits to his spouse as it was not an option at that time.

3.  The applicant provides no additional evidence.

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 had prior active service, the applicant enlisted in the Regular Army on 5 March 1998 and he held military occupational specialty 11B (Infantryman).  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 March 2005.

3.  His record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 February 2007 that shows he was honorably discharged in the rank of SSG by reason of disability with entitlement to severance pay.  He completed 8 years, 11 months, and 5 days of net active service this period for 9 years, 2 months, and 24 days of total creditable active service.

4.  Orders DO54-13, issued by the U.S. Army Physical Evaluation Board, Walter Reed Medical Center, Washington, D.C., dated 23 February 2011, indicate he was placed on the Temporary Disability Retired List (TDRL) effective 10 February 2007.  These orders further show that effective 9 August 2007, he was removed him from the TDRL because of permanent physical disability and permanently retired on the following date.

5.  Public Law 110-552 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits and limited eligibility to members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.

6.  On 22 June 2009, Department of Defense (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 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 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 from 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.
7.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

8.  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 requests transfer of his Post-9/11 GI Bill educational benefits to his spouse under TEB.

2.  The program was not implemented until July 2009 and the law required a person to be on active duty or serving as a member of the Selected Reserve on or after 1 August 2009 in order to be eligible.  His last day of active duty service was 9 February 2007.  As such, he was ineligible to transfer his educational benefits to his spouse

3.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130006591



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ABCMR Record of Proceedings (cont)                                         AR20130006591



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