BOARD DATE: 23 January 2014
DOCKET NUMBER: AR20130008535
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 son under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states, in effect, that he was not informed that he was required to transfer his education benefits under the Post-9/11 GI Bill to his eligible dependents prior to his retirement from the Army.
3. The applicant provides a letter from the Disabled American Veterans (DAV), National Service Office, dated 9 April 2012.
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 enlisted in the Regular Army on 8 January 2003 and retired on 13 September 2009, due to a temporary disability in the rank/grade of specialist/E-4. He completed 6 years, 8 months, and 6 days of creditable service.
3. The applicant provides a letter from the DAV, dated 9 April 2012, which provides the applicant an unofficial notification of the findings of his claim for benefits from Department of Veterans Affairs.
4. On 22 June 2009, the Department of Defense (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:
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.
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 for the administration of the program. A Soldier must initially request to transfer benefits on the DoD's TEB online database. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access. The respective family member must then submit an application for VA educational benefits (VA Form 22-1990e) to request to use the benefits.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests entitlement to transfer his educational benefits to his son under the TEB provision of the Post-9/11 GI Bill.
2. The law governing the transferability of unused Post-9/11 GI Bill benefits places legal limitations on transferability. Members must register and complete transfer prior to leaving the service.
3. The available evidence clearly shows that he was not eligible to transfer his education benefits under the TEB at the time of his separation. The TEB policy guidance provides that a Soldier with less than 10 years of service must agree to complete an additional 4 years of service at the time the request for transfer of education benefits is approved. The record shows the applicant had less than
10 years of qualifying service when he was medically discharged in 2009 which would have required him to incur an additional 4-year service obligation if he had chosen to transfer his education benefit. Because he had less than 10 years of service that service obligation could not be waived. The applicant is not eligible to transfer his education benefits.
4. Based on the above, his request should be denied.
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) AR20130008535
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ABCMR Record of Proceedings (cont) AR20130008535
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