BOARD DATE: 30 December 2014
DOCKET NUMBER: AR20140005887
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 he was not aware of the new rules. He retired in 2004.
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 enlisted service in the Army National Guard (ARNG) and commissioned officer service in the Regular Army, he was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 30 August 1986.
3. He served in a variety of assignments and he was advanced to the rank of lieutenant colonel (LTC).
4. On 19 February 2003, the U.S. Army Reserve Personnel Command, St. Louis issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).
5. On 18 May 2004, Headquarters, U.S. Army Civil Affairs and Psychological Operations Command, Fort Bragg, NC published orders transferring him to the Retired Reserve effective 2 June 2004.
6. 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.
7. On 22 June 2009, 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.
DISCUSSION AND CONCLUSIONS:
1. With prior active and ARNG service, the applicant served in an active status in the U.S. Army Reserve from 31 August 1986 to 2 June 2004. 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 was transferred to the Retired Reserve on 2 June 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 under the TEB provision of the Post-9/11 GI Bill to his family members.
3. 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.
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