IN THE CASE OF:
BOARD DATE: 14 August 2014
DOCKET NUMBER: AR20130022156
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 to transfer educational benefits to his son under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he was grandfathered in the Montgomery GI Bill to receive the Post 9/11 GI Bill. He served in the Army from July 1978 to July 2004. He clarified his request on 25 July 2014 when a staff member of the Agency screening team contacted him.
3. The applicant does not provide any 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's records show he was born in September 1959 and he enlisted in the U.S. Army Reserve (USAR) on 7 February 1978. He held a combat engineer military occupational specialty.
3. He served through multiple reenlistments in a variety of assignments. He attained the rank/grade of staff sergeant/E-6.
4. On 9 April 1998, the U.S. Army Reserve Personnel Command issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).
5. On 15 April 2004, he was transferred to the Retired Reserve.
6. On 22 June 2009, 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;
c. or 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.
7. 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. However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.
DISCUSSION AND CONCLUSIONS:
1. The applicant served in the USAR from 7 February 1978 to 15 April 2004. The law requires a member to be on active duty or in the Selected Reseve on or after 1 August 2009 at the time he/she requests the transfer. The applicant was neither on active duty nor in the Selected Reserve at the time this program was implemented. Therefore, he is not eligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his family members.
2. The applicant's service and his sincerity are not in question. However, the requirements of this program are set in the law and changes to this law are not within the purview of this Board. There is neither an error nor an injustice in his case and as such, he 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 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) AR20130022156
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ABCMR Record of Proceedings (cont) AR20130022156
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