IN THE CASE OF

		BOARD DATE:	    14 August 2014

		DOCKET NUMBER:  AR20130022167 


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 his Post-9/11 GI Bill education benefits.

2.  The applicant states:

   a.  He was not provided the opportunity to elect to transfer his Post-9/11 GI Bill benefits to his dependents.  He believes personnel impacted by statutory requirements that are out of their control, such as a mandatory removal date (MRD), who served honorably, who have accrued benefits through their service that would have been transferable, should not be discriminated against.  
   
   b.  In August 2009, he had completed the required years for retirement to immediately transfer benefits and retire without incurring additional service time.  He served and earned his benefits the same time as others who have transferred their benefits and then retired soon after because they already had the years of service.  His MRD, after 28 years, was effective 16 January 2009.  
   
   c.  He is technically an available personnel source to the Government and still in "service" to the extent allowed by the MRD statute.  From his MRD it will be approximately 9 years before he can actually receive a pension.  In the interim he is receiving no compensation because of the MRD statute.  His third child is currently in college, and finding a replacement for the lost income this benefit would have provided is not happening.

3.  The applicant provides copies of Orders 09-016-00018 and a proposed dependent's next semester school expenses information document.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant was appointed in the U.S. Army Reserve (USAR) on 22 December 1980.  

3.  On 1 June 2004, he was promoted to lieutenant colonel (LTC).
  
4.  Orders 09-016-00018, issued by Headquarters, 84th Training Command (Leader Readiness), Fort McCoy, WI on 16 January 2009, reassigned him from his current unit to the Retired Reserve effective the same day, under the provisions of Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers).

5.  He provided a copy of his dependent's proposed expenses for his 2014 Spring semester.

6.  Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Army Reserve Soldiers.  Paragraph 7-2 provides that LTCs will be removed from an active status upon their completion of 28 years of commissioned 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.

8.  The policy further states the Secretaries of the Military Department will provide active duty participants and members of the Reserve Components with qualifying active service individuals pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain record for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

9.  Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, Public Law 110-252 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.  The requirements for transferability are the Solider:

   a.  has a 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 of DoD) or statute from committing to 4 additional years and agrees to service for the maximum amount of time allowed by such policy or stature; 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 service or 20 qualifying years of Reserve service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was transferred to the Retired Reserve on 16 January 2009, upon his completion of 28 years of commissioned service.  

2.  In order to transfer educational benefits, the law required a member to be serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  His last day in an active status was 16 January 2009, and since there is no evidence he was a member of the Selected Reserve on or after         1 August 2009, he is not eligible to transfer educational benefits to his dependents.  

3.  The applicant is commended for his honorable service; unfortunately, he was separated from an active status prior to 1 August 2009.  Therefore, this incentive was not available to him at the time of his separation and it is still not available to him unless Congress changes the law.  There is neither an error nor an injustice in his transfer of benefits processing.  


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)                                         AR20130022167





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ABCMR Record of Proceedings (cont)                                         AR20130022167



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