IN THE CASE OF:
BOARD DATE: 22 July 2014
DOCKET NUMBER: AR20130020217
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 correction of his records to show his education benefits were transferred to his eligible dependent in accordance with the Transfer of Education Benefits provision of the Post-9/11 GI Bill.
2. The applicant states he was not informed that he must transfer his Post-9/11 GI Bill benefits to his dependent prior to his discharge.
3. The applicant provides no additional documentary evidence in support of this 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. The applicant entered active duty in support of Operation Iraqi Freedom on 19 July 2006.
3. On 8 October 2007, he was honorably released from active duty at the completion of his required period of active service, and transferred back to his Army National Guard (ARNG) unit.
4. On 29 May 2008, Military Department of Arkansas, Officer of the Adjutant General, issued Orders 150-807, discharging him from the ARNG and transferring him to the Retired Reserve effective 29 May 2008 in the rank of staff sergeant due to completion of 20 or more years of qualifying service for non-regular retired pay.
5. Public Law 110-252, section 3319, dated 22 June 2008, authorized the transfer of unused education benefits to eligible family members. The law provided that the Secretary of Defense would prescribe the implementation of the program. It also provided that eligible participants must be serving as a member of the Armed Forces when the transfer is executed.
6. On 22 June 2009, Department of Defense established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states that 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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention has been noted. However, according to the applicable law and regulation, he is not eligible to transfer benefits under the Post-9/11 GI Bill transferability program. He was transferred to the Retired Reserve on 29 May 2008, more than 1 year before the program went into effect on 1 August 2009 and before existence of the law. Unfortunately, there are no provisions in the law for retroactive eligibility that will allow him to transfer his benefits.
2. While it is certainly understandable that he desires to transfer his benefits, he was not eligible to transfer his benefits when the program was implemented and there are no provisions to achieve a transfer in the applicants case. To do so would afford him a benefit not afforded to others in similar circumstances. Accordingly, there is no basis to grant his request.
3. The applicant and all others concerned should know that this action in no way diminishes the sacrifices he made in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms.
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) AR20130020217
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