IN THE CASE OF:
BOARD DATE: 12 November 2014
DOCKET NUMBER: AR20140005789
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, correction of her military records to show she is entitled to transfer her educational benefits (TEB) under the Post-9/11 GI Bill to her dependents.
2. The applicant states she retired on 30 September 2007 but the authorization for TEB did not occur until 1 August 2009. She believes she should be given an exemption because she was unaware of this ruling. After speaking with numerous representatives at the Department of Veterans Affairs (VA), she was informed about how to make this request.
3. The applicant provides copies of:
* VA Form 21-4138 (Statement in Support of Claim) dated 30 March 2014
* Letter from the applicant dated 27 March 2014 that does not appear to relate to the issue of this case
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. After completing 24 years and 9 days of creditable active service, the applicant retired from the Army on 30 September 2007 by reason of sufficient service for retirement.
3. The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives, 2642. In July 2008, Congress passed a law for the Post-9/11 GI Bill that went into effect on 1 August 2009.
4. The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents. A member is considered to be retirement eligible upon completion of 20 years of active Federal service or
20 qualifying years as computed under Title 10, U.S. Code, section 12732:
a. service members eligible for retirement on 1 August 2009 no additional service required;
b. service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 no additional service required;
c. service members eligible for retirement after 1 August 2009 and before 1 August 2010 1 year of additional service is required;
d. service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 2 years of additional service is required;
e. service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 3 years of additional service is required; and
f. active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends she should be granted an exemption to allow her to be eligible for TEB under the Post-9/11 GI Bill because she was unaware of the TEB program.
2. The evidence clearly shows the applicant retired on 30 September 2007, prior to the implementation of the TEB under the Post-9/11 GI Bill, effective 1 August 2009. Therefore, she did not meet the eligibility requirements for TEB under the Post-9/11 GI Bill.
3. The TEB was established as a matter of law. It is not a policy or ruling that can be altered or ignored. Accordingly, this Board does not have the authority to authorize the applicant an exception to the law.
4. In view of the foregoing, 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) AR20110022503
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140005789
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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