IN THE CASE OF:
BOARD DATE: 17 July 2014
DOCKET NUMBER: AR20130020086
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 approval to transfer his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his spouse.
2. He states:
* there is no injustice
* he's trying to transfer his Post-9/11 GI Bill to his wife
* his expiration of term of service (ETS) date was 9 September 2009
* he was told that some changes were made by Department of Defense (DOD)
3. He provides 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 enlisted in the Regular Army on 17 March 2004 for a period of
4 years. He was honorably released from active duty on 9 September 2009 by reason of completion of required active service. On the following day, he was transferred to a Reserve unit. He completed 5 years, 5 months, and 23 days of active military service.
3. Orders 10-307-00058, dated 3 November 2010, published by Headquarters, 81st Regional Support Command, show he was discharged from the U.S. Army Reserve (USAR) on 3 November 2010.
4. The applicant's service record does not include evidence showing he attempted to transfer educational benefits prior to leaving military service on 3 November 2010.
5. On 22 June 2009, 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.
6. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service, individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.
DISCUSSION AND CONCLUSIONS:
1. The applicant's statements in regard to his entitlement to TEB under the
Post-9/11 GI Bill to his spouse are acknowledged.
2. Based on DOD policy, an individual is eligible to transfer educational benefits to eligible family members after 1 August 2009 who at the time of the approval of the individual's request to transfer entitlement to educational assistance 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.
3. The evidence of record shows he was fully eligible to transfer his educational benefits under the TEB prior to his discharge from the USAR on 3 November 2010, but did not do so.
4. His service record is void of evidence and he has not provided any evidence which shows he attempted to transfer educational benefits prior to leaving military service.
5. Since the applicant did not transfer his benefits before he was discharged on 3 November 2010, he is ineligible to transfer benefits.
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) AR20130020086
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ABCMR Record of Proceedings (cont) AR20130020086
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