IN THE CASE OF:
BOARD DATE: 23 January 2014
DOCKET NUMBER: AR20130008986
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 that he be granted a waiver to transfer his GI Bill education benefits (TEB) to his child.
2. The applicant states that he retired on 30 June 2009, 30 days prior to the
1 August 2009 implementation of the policy allowing transfer of education benefits to dependents. He goes on to state that he served almost 24 years and missed the assigned date by 30 days; however, he falls within 90 days of the implementation date.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 entered active duty on 12 August 1985. He was promoted to the rank of colonel on 1 July 2002 and served in Iraq during the period 19 October 2006-18 January 2008.
3. On 30 June 2009, he was honorably retired due to sufficient service for retirement. He had served 23 years, 10 months, and 19 days of active service.
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 agrees to certain other requirements.
DISCUSSION AND CONCLUSIONS:
1. The law implementing the TEB went into effect 1 August 2009 and required that members must be in an active status in order to affect such a transfer. There are no provisions that allow TEB prior to the implementation of the law.
2. While the applicants dedicated service to his country is deeply appreciated, there is no error or injustice in his case as everyone who separated from the service prior to 1 August 2009 have also been denied the opportunity to TEB to their dependents.
3. Accordingly, there appears to be no basis to grant the applicants request to TEB to his dependents.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X____ ___X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.
____________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) AR20130008986
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ABCMR Record of Proceedings (cont) AR20130008986
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