IN THE CASE OF:
BOARD DATE: 9 December 2014
DOCKET NUMBER: AR20140005791
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 an exception to policy to transfer educational benefits to his family member under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states, in effect, he is entitled to this benefit due to his active duty service after 11 September 2001. He believes he should be able to transfer this educational benefit to his son. A college has accepted his son and it is important to the applicant that his son receives this benefit.
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. Having had prior service in the U.S. Navy, the applicant enlisted in the Regular Army on 19 February 1987. He served through multiple reenlistments in a variety of assignments. He attained the rank/grade of master sergeant (MSG)/E-8.
3. He retired on 30 September 2004 and he was placed on the Retired List in his retired rank/grade of MSG/E-8 on 1 October 2004. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed over 21 years of active service.
4. Public Law 110-252 limits the eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve.
5. On 22 June 2009, the Department of Defense (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, or
c. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant served on active duty (Army) from 19 February 1987 to 30 September 2004 (with prior active service). The law requires a member to be on active duty or in the Selected Reserve on or after 1 August 2009 at the time he/she requests the transfer. The applicant retired from active duty on
30 September 2004, some 5 years before the law became effective.
2. He 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 to his family members under the TEB provision of the Post-9/11 GI Bill.
3. The applicant's service is not in question. However, the requirements of this program are set in the law and any 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) AR20140005791
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ABCMR Record of Proceedings (cont) AR20140005791
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