IN THE CASE OF:  

		BOARD DATE:  18 November 2014	  

		DOCKET NUMBER:  AR20140005854 


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 elected to transfer his Post-9/11 GI Bill educational benefits to his children.

2.  The applicant states he was not informed of the requirement to transfer his Post-9/11 GI Bill educational benefits prior to being separated from active duty.  In fact, he was told that he could accomplish this after each child graduated from high school.  During his separation processing he concentrated on transitioning from being a Soldier to becoming a civilian and he was focused on obtaining employment.  He served in the U.S. Army honorably and respectfully for more than 10 years and it is an injustice that he is being told that he must forfeit his educational benefits.

3.  The applicant provides no documentary evidence 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.  The applicant enlisted in the Regular Army (RA) on 8 July 1999.  Through a series of reenlistments, he continued to serve in the RA until 23 July 2010.

   a.  He served in Afghanistan from 10 October 2001 to 1 May 2002 and in Iraq from 18 March 2003 to 1 April 2004.

   b.  He was discharged under honorable conditions on 23 July 2010.

3.  A review of the applicant's military personnel records failed to reveal any evidence of a request to transfer educational benefits (TEB) to any of his family members.

4.  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.  The 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.  An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, does not have an adverse action flag and has completed at least:

		(1)  6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces;

    	(2)  10 years of service in the Armed Forces on the date of election and cannot commit to 4 additional years due to a Retention Control Point (RCP) or Mandatory Retirement Date (MRD) must commit to serve for the maximum amount of time allowed by either RCP or MRD as of the date of request, regardless of the number of months transferred; or

		(3)  the years of service as determined in Army regulations and established by the Secretary of the Army.

	b.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows:

		(1)  to the individual's spouse;

		(2)  to one or more of the individual's children; or

		(3)  to a combination of the individuals identified above.

   c.  Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he elected to transfer his Post-9/11 GI Bill educational benefits to his children because he was not properly counseled on the transfer of his educational benefits prior to his discharge from active duty.

2.  The evidence of record shows a Soldier is eligible to transfer entitlement to educational assistance, if he does not have an adverse action flag.  Records show the applicant was discharged based on misconduct.  As such, an adverse action flag would have been in effect during the processing of his separation action and until the date of his separation.  In addition, he had at least 10 years of service; however, due to the adverse action flag he could not commit to any additional years of service.  Thus, the evidence of record fails to show the applicant was eligible to transfer his Post-9/11 GI Bill educational benefits.

3.  In view of the foregoing evidence, 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)                                         AR20130021585



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ABCMR Record of Proceedings (cont)                                         AR20140005854



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