IN THE CASE OF:
BOARD DATE: 6 May 2014
DOCKET NUMBER: AR20130015264
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 allowing him to transfer educational benefits to his daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states the program was new in 2010 when he transferred benefits to his son. A case worker at the U.S. Army Human Resources Command (HRC) Education Branch (then in St. Louis) told him he did not have to add his daughter until after her junior year of high school. His daughter has now finished her junior year of high school and when he contacted HRC (now at Fort Knox) he was told he could not transfer any of the benefit to his daughter because he never enrolled her. He should not lose this benefit because he was given bad information.
3. The applicant provides no additional evidence in support of his application.
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. After previously serving in the Regular Army, Army National Guard, and U.S. Army Reserve (USAR) he enlisted in the USAR on 9 March 1996 and served continuously until his transfer to the Retired Reserve.
3. There is no evidence available showing the date of his TEB for his son.
4. On 4 March 2010, he was notified he had completed the required years of qualifying Reserve service and was eligible for retired pay on application at
age 60 (20-year letter).
5. On 23 July 2010, he transferred to the Retired Reserve. He had completed 20 years, 4 months, and 19 days of qualifying service for retirement pay at
age 60.
6. Public Law 110-252, dated 30 June 2008, authorized the Post-9/11 GI Bill which became effective 1 August 2009. 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.
7. Department of Defense Directive-Type Memorandum (DTM) 09-003, dated
22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members.
a. Eligible individuals include a member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of their request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill, and is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013 and agrees to serve any specified additional period of service. For those individuals who had an approved retirement date after
1 August 2009 and before 1 July 2010, no additional service was required. For those individuals eligible for retirement on or after 1 August 2009, and before
1 August 2010, 1 year of additional service is required.
b. 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.
c. An individual approved to transfer entitlement to educational assistance may transfer such entitlement to the individual's family member(s) only while serving as a member of the Armed Forces.
d. A family member must be enrolled in Defense Enrollment Eligibility Reporting System and be eligible for benefits at the time of transfer to receive transferred educational benefits.
e. An individual may add new dependents, modify the number of months of the transferred entitlement for existing dependents, or revoke transfer of entitlement while serving in the Armed Forces.
f. A child may use the benefit while the eligible individual remains in the
Armed Forces or after separation from active duty after completing the additional service required to transfer the educational assistance under the Post-9/11 GI Bill.
8. A memorandum, dated 10 July 2009, from the Office of the Assistant Secretary of the Army, Manpower and Reserve Affairs, subject: Post 9/11 GI Bill Policy Memorandum states in paragraph 17h(6) that a Soldier who separates or is released from Armed Forces prior to completion of an agreed upon additional service commitment will have their transfer of benefits revoked by the VA. Benefits already used by a dependent will be recouped by the VA.
DISCUSSION AND CONCLUSIONS:
1. He received his 20-year letter on 4 March 2010. According to DTM 09-003,
1 year of additional service was required from the time of approval of the TEB for members who attained retirement eligibility on or after 1 August 2009, and before 1 August 2010.
2. He was eligible to transfer benefits to his dependents at any time after
1 August 2009. However, he was required to serve 1 year of additional service from the date of approval of his TEB. He stated he elected TEB for his son; however, the date of this TEB is unknown. Based on his transfer to the Retired Reserve on 23 July 2010, he could not have served the required 1 year of additional service. Therefore, he is not eligible to TEB for his daughter.
3. The law requires a member to be in an active status at the time he/she requests the TEB. The applicant is not in an active status and he did not leave military service during the implementation phase of the program. Therefore, he is not eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his daughter.
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) AR20130015264
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