IN THE CASE OF:
BOARD DATE: 11 February 2014
DOCKET NUMBER: AR20130010223
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, approval of an exception to policy to transfer her Post-9/11 GI Bill educational benefits to her husband.
2. The applicant states she has completed her own educational goals and no longer feels she could utilize her benefits. Her husband provides support for her and their children; however, she feels he cannot advance without additional education. At the time of her discharge, she was advised that if she didn't use her full benefits she could transfer them to her husband. She recently became aware of the requirement to transfer the benefits prior to leaving military service.
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. The applicant enlisted in the U.S. Army Reserve on 22 February 2008. She was ordered to initial active duty for training and entered active duty on 4 March 2008.
3. On 2 October 2008, a medical evaluation board convened and referred her to a physical evaluation board (PEB).
4. On 6 November 2008, a PEB convened and considered her medical condition of chronic right leg pain due to residual of healing fibula stress fracture. The PEB found her physically unfit and recommended a combined disability rating of 10 percent. The PEB recommended her separation with severance pay. She concurred.
5. She was discharged from active duty on 10 December 2008 by reason of disability with entitlement to severance pay. She completed 9 months and 7 days of net active service and 12 days of prior inactive service.
6. The Post-9/11 Veterans Educational Assistance Act of 2008 improved educational benefits for certain individuals serving on active duty in the Armed Forces on or after 11 September 2001.
7. 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; or
c. is or becomes retirement eligible during the period 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant served on active duty from 4 March to 10 December 2008. The Post-9/11 GI Bill program was not in effect during her period of military service. 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 or she requests to transfer educational benefits.
2. The applicant was neither on active duty nor in the Selected Reserve at the time this program was implemented. Therefore, she is not eligible to transfer her educational benefits to her husband.
3. 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 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) AR20130010223
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ABCMR Record of Proceedings (cont) AR20130010223
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