IN THE CASE OF:
BOARD DATE: 2 January 2014
DOCKET NUMBER: AR20130006673
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 her dependents under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states she was not informed she was entitled to Post 9/11 GI Bill benefits or that she could transfer them to her dependents prior to exiting active duty.
3. The applicant does not provide any documentation.
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. Her record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows she was honorably discharged with disability, severance pay on 15 December 2003. This form shows she completed 2 years and 18 days of total active service and 6 years, 2 months, and 14 days of inactive service at the time of her separation. There is no other record of military service after this period.
3. On 22 June 2009, the DoD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible individual is 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 is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013.
4. On 10 July 2009, the Army released the TEB provision of 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 (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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for an exception to policy to transfer educational benefits to her dependents under the TEB provision of the Post-9/11 GI Bill was carefully considered.
2. The applicant last day in the service was 15 December 2003 and there is no record of her having served in an active status when the program was implemented. The law requires a member to be in an active status on or after
1 August 2009 and eligible to transfer to the Retired List at the time he/she requests the transfer. As such, she is not eligible to transfer her education benefits under the TEB provision of the Post-9/11 GI Bill to her dependents.
3. The applicant's service and her sincerity are not in question. However, the requirements of this program are set in the law and any changes to this law are not within the purview of this Board. There is neither an error nor an injustice in her case and as such, she is not entitled to the 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) AR20130006673
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ABCMR Record of Proceedings (cont) AR20130006673
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