BOARD DATE: 11 March 2014
DOCKET NUMBER: AR20130012457
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 transfer of his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his children.
2. The applicant states when he [tried to] transfer his education benefits to his children the request was denied. The denial stated his eligibility ended on 1 August 2009. However, according to the Department of Veterans Affairs (VA) his benefits are eligible from 30 January 2003 to 5 August 2022. He is eligible at 80 percent for 36 months with none of the months used. He retired from the Colorado Army National Guard (COARNG) on 31 October 2007.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).
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. Having had prior active duty and Reserve service, the applicant was appointed as a Reserve officer in the COARNG on 30 July 1995. He served in staff and leadership positions and he attained the rank of captain (CPT) on 13 December 2004.
3. He was honorably separated from the COARNG on 31 October 2007 in the rank of CPT and he was transferred to the Retired Reserve.
4. Public Law 110-552 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits and limited eligibility to members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
5. On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states 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 from 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.
6. 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 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 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:
The applicant requests transfer of his Post-9/11 GI Bill educational benefits to his children under TEB. However, the program was not implemented until July 2009 and the law required a person to be on active duty or serving as a member of the Selected Reserve on or after 1 August 2009 in order to be eligible. His last day of active Reserve service was 31 October 2007. As such, he was ineligible to transfer his educational benefits to his children; therefore, there is no basis for granting 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) AR20130012457
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130012457
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140019248
The applicant states: * he did not have the opportunity to choose to have his child use his Post 9/11 education benefits because he was separated from active duty in October 2006 * he was later separated from the Colorado Army National Guard (COARNG) on 21 July 2009 * both dates occurred prior to the activation of the Post 9/11 GI Bill transferability (August 2009); thus, he was unaware of the transfer rules * he can only use this benefit for himself but other Soldiers have a choice and he...
ARMY | BCMR | CY2011 | 20110021656
The applicant requests, in effect, an exception to policy to transfer his educational benefits to eligible dependents under the Transfer of Education Benefits (TEB) provisions of the Post-9/11 GI Bill. 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. As a result, the Board...
ARMY | BCMR | CY2011 | 20110008015
The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. b. the applicant is eligible to transfer benefits under the Post 9/11 GI Bill TEB Program to his dependents because he left the service within 90 days of the implementation of the program. The evidence of record shows the applicant retired from active duty on 31 October 2009, which is within 90 days of...
ARMY | BCMR | CY2013 | 20130005799
The applicant requests correction of his records to show he made a timely application, prior to his effective date of retirement, to transfer his unused education benefits to his eligible dependent, in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. The evidence shows the applicant was fully eligible to transfer his unused education benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement date of 30 September 2009. As a...
ARMY | BCMR | CY2011 | 20110021661
The applicant requests, in effect, an exception to policy to transfer his educational benefits to eligible dependents under the Transferring Educational Benefits (TEB) provisions of the Post-9/11 GI Bill. The applicant had more than 21 years of service upon retirement, so he was eligible to transfer benefits to either his spouse or children if he completed the request before leaving military service. As a result, the Board recommends that all Department of the Army records of the...
ARMY | BCMR | CY2011 | 20110014582
He states that he retired from active duty on 31 October 2009 and he was eligible to transfer his educational benefits to his dependents under the TEB provisions of the Post-9/11 GI Bill because he had an approved retirement date after 1 August 2009 and before 1 July 2010, with no additional service required. The applicant's military records show he enlisted in the Regular Army on 7 September 1988 and he was honorably retired on 31 October 2009. As a result, the Board recommends that...
ARMY | BCMR | CY2011 | 20110021069
The applicant had more than 20 years of service upon retirement, but he was not eligible to transfer to either his spouse or his children because the law requires the Soldier to be in the service on or after 1 August 2009. c. A Soldier may only transfer to eligible dependents. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states, in part, that those who retire on or...
ARMY | BCMR | CY2014 | 20140014094
On 17 July 2014, he was informed by Mr. T____ E____, VA Education Services, that the application for the TEB option should have been offered to him prior to separation from the service. However, this was the first time he learned there was a requirement to be approved for TEB prior to separation from the service and this option should have been offered to him upon his release from the NCARNG and at the time of retirement. He is asking that the Board correct his records to show he requested...
ARMY | BCMR | CY2012 | 20120010851
The applicant had more than 20 years of service upon his retirement, but he was not eligible to transfer to either his spouse or his children because the law requires Soldiers to be in the service on or after 1 August 2009. c. A Soldier may only transfer to eligible family members. If the applicant had been in the service on 1 August 2009, he would not have incurred an additional service obligation, but he was not eligible because he left service prior to 1 August 2009. e. A Soldier must...
ARMY | BCMR | CY2012 | 20120001374
The applicant requests, in effect, correction of his military records to show he transferred his Montgomery GI Bill (MGIB) benefits to his son prior to retirement under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. The policy further states the Secretaries of the Military Departments will provide AD participants and members of the Reserve Components with qualifying AD service individual pre-separation or release from AD counseling on the benefits under the...