IN THE CASE OF
BOARD DATE: 2 September 2014
DOCKET NUMBER: AR20140002023
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, approval to transfer educational benefits to her dependents under the Transfer of Education Benefits (TEB) provision of the
Post-9/11 GI Bill.
2. The applicant states she was forced to retire early. Subsequently, the Army Board for Correction of Military Records (ABCMR) reviewed her case and retroactively granted her full relief on 30 June 2011 with benefits. She further states that she was not made aware of the TEB requirements at the time of her retirement because she was forced out early.
3. The applicant provides:
* Department of Veteran Affairs (VA) Letter, dated 22 November 2013
* ABCMR Docket Number AR20100020607, dated 30 June 2011
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 initially retired on 30 April 2006 from the Texas Army National Guard (TXARNG) Active Guard Reserve Program.
3. On 30 June 2011, this Board determined that there had been irregularities in her separation processing and therefore corrected her record to show that she retired on 31 October 2008 and was placed on the Retired List on 1 November 2008 in the rank of lieutenant colonel (LTC). The applicant requested this date in order to allow her to have the required time in grade for retirement in the grade of LTC/O5 and be able to attain her highest three years of salary for retired pay. She was issued a DD Form 215 (Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty)) to show this change.
4. The Board stated that she was also entitled to a revised Retirement Points History Statement, and entitlements, benefits, and all due back pay and allowances as a result of this correction. Further, it could be reasonably presumed that she could have been retained in the AGR Program and continued to serve given her mandatory release date (MRD) of 2017.
5. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, Public Law 110-252, section 3020, 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. Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service. A Soldier must currently be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009.
6. 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.
DISCUSSION AND CONCLUSIONS:
1. The requirement to transfer the benefits while a member is serving on active duty or in the Selected Reserve on or after 1 August 2009 is embedded in the law and a change to this law is not within the purview of this Board.
2. In this case, the applicants records were corrected to show she retired on
31 October 2008 and transferred to the Retired List on 1 November 2008 which was prior to the implementation of the program and also the reason that she was not made aware of the TEB requirements. The fact that she could have served until her MRD is noted but in order to transfer benefits the individual must be on active duty or in the Selected Reserves on 1 August 2009; therefore she is not eligible to transfer her education benefits under the Post 9/11 GI Bill to her dependents.
3. There is neither an error nor an injustice in her case and, as such, she 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) AR20140002023
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140002023
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