IN THE CASE OF:
BOARD DATE: 16 January 2014
DOCKET NUMBER: AR20130008720
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, in effect, an exception to policy to transfer educational benefits to his spouse under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he and his spouse were never informed about the upcoming Post 9/11 GI Bill in 2009. They found out about the new program in August 2009 (2 months after he was medically retired) and he was eager to transfer his benefits to his spouse so she could continue her education without more financial hardship. However, he was told he could not transfer the benefit because he was medically retired 2 months prior to the start of the program.
3. The applicant provides his:
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 May 2009
* Department of Veterans Affairs (VA) Rating Decision, dated 4 December 2009
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. He was retired on 30 May 2009 by reason of permanent disability and placed on the Retired List the following day. He completed 5 years, 8 months, and
29 days of active service that was characterized as honorable.
3. Public Law 110-252, dated 30 June 2008, authorized the Post-9/11 GI Bill which became effective 1 August 2009. Section 3319 of this law states that an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed.
4. 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 for 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 law requires a member to be serving on active duty or in the Selected Reserve on or after 1 August 2009 at the time he/she requests the transfer. The applicant was neither on active duty or in the Selected Reserve at the time the program was implemented. Therefore, he is not eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his spouse.
2. The requirements of this program are set in the law and any changes to the law are not within the purview of this Board. There is neither an error nor an injustice in his case and, as such, he is not entitled to the requested relief. 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) AR20130008720
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ABCMR Record of Proceedings (cont) AR20130008720
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