IN THE CASE OF:
BOARD DATE: 14 October 2014
DOCKET NUMBER: AR20140003345
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 he transferred his educational benefits to his dependent(s) under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to retiring from active duty.
2. The applicant states that he was verbally informed that he would be eligible for the Post-9/11 GI Bill. He also states that he met all of the requirements to receive the educational benefit, but he was never informed of the requirement to transfer the benefit while on active duty. Had he known of the requirement, he would definitely have transferred his benefit. He adds that he and his wife have been married for 22 years and he is the father of three children.
3. The applicant provides copies of his separation documents in support of his 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. After having had prior service, the applicant was appointed as a commissioned officer in the rank of second lieutenant and entered active duty on 18 January 1991. He continued to serve on active duty and attained the rank of lieutenant colonel/pay grade O-5. He retired on 30 November 2008 and was placed on the Retired List effective 1 December 2008.
3. Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members. This public law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.
a. The law identified the qualifying Title 10 and Title 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill.
b. The Post-9/11 GI Bill TEB Program was implemented on 1 August 2009.
c. Eligibility to transfer unused benefits is limited to those members of the U.S. Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his educational benefits should be transferred to his dependent(s) under the TEB provision of the Post-9/11 GI Bill because he was never informed of the requirement to transfer the benefit before he retired from active duty.
2. Records show the applicant was placed on the Retired List on 1 December 2008.
3. The law provides that a service member must have been serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 in order to be eligible to transfer unused benefits to eligible family members.
4. The applicant was not serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. Therefore, he is not eligible for the
Post-9/11 GI Bill transferability option.
5. Considering all the evidence and information presented by the applicant, together with the evidence of record, there is no basis for granting the applicant's 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) AR20140003345
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ABCMR Record of Proceedings (cont) AR20140003345
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