IN THE CASE OF:
BOARD DATE: 20 November 2014
DOCKET NUMBER: AR20140007090
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, transfer of his education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his spouse.
2. The applicant states:
a. he was informed his Post 9/11 GI Bill benefits were not transferable to his spouse for some reason; and
b. upon his discharge from active duty, he was never informed of any requirement to remain on active duty to receive Post 9/11 GI Bill Benefits.
3. The applicant provides:
* Department of Veterans Affairs (VA), Muskogee Regional Office, Letter
* VA Form 4107 (Your Rights to Appeal)
* VA Form 22-0338
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 3 December 1987 and continuously served until he was honorably released from active duty to accept a commission or warrant in the Army on 23 May 2002.
3. On 24 May 2002, the applicant was appointed a Reserve commissioned officer in the rank of second lieutenant/O-1 and entered active duty that day. He continued to serve until he was retired from active duty in the rank/grade of captain (CPT/O-3) on 31 October 2007, having completed a total of 20 years and 2 days of creditable active duty 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 are members of the Selected Reserve. A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her family members (on or after 1 August 2009).
DISCUSSION AND CONCLUSIONS:
1. The applicant served on active duty from 3 December 1987 through 31 October 2007. The Post-9/11 GI Bill program was not in effect during his period of military service. The law states only those individuals who served on active duty on or after 1 August 2009 are eligible to transfer education benefits under the provisions of the Post-9-11 GI Bill.
2. Regretfully, based on the law that is in effect, he is not eligible to transfer his educational benefits.
3. There is neither an error nor an injustice in his case; therefore, 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) AR20140007090
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ABCMR Record of Proceedings (cont) AR20140007090
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