BOARD DATE: 2 December 2014
DOCKET NUMBER: AR20140007586
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 his records to show he is eligible to transfer his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to his transfer to the Retired Reserve.
2. The applicant states that he was unaware of the provisions to transfer his education benefits to his dependents at the time he was serving in the New York Army National Guard (NYARNG).
3. The applicant provides no additional documents with 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 was serving in the rank of sergeant in the NYARNG when he was honorably discharged from the NYARNG and the United States Army Reserve on 19 March 2006.
3. On 12 June 2008, he was issued his Notification of Eligibility for Retired Pay at age 60 (20-Year Letter).
4. On 18 March 2014, he was placed on the AUS Retired List at age 60 in the rank of sergeant.
5. 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 of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.
6. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members. A service member may execute the transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. General eligibility criteria are as follows:
a. Service members must have accrued specific qualifying active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.
b. Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.
7. The program guidance stipulates that if a service member becomes retirement eligible during the period beginning on 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. 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's request that his records be corrected to show he applied for and the Army approved transferring his education benefits to his dependents under the provisions of the Post-9/11 GI Bill prior to discharge on 19 March 2006 has been carefully considered.
2. The Post-9/11 GI Bill was implemented on 1 August 2009 and the applicant had already been discharged on 19 March 2006, well before the law went into effect, which accounts for why the applicant was not informed of the process for transferring education benefits.
3. While it is understood why the applicant feels that the law is unjust, unfortunately there are no provisions in the law for retroactive eligibility that will allow him to transfer his education benefits to his family members. To do so would afford him a benefit not afforded to the many others in the same situation.
4. Accordingly, the applicant was not eligible to transfer his benefits and there is no basis to grant his request.
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) AR20140007586
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20140007586
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140019611
The applicant requests, in effect, correction of his records to show he applied for the Post 9/11 GI Bill Transferability Program in order to transfer his education benefits to his dependent daughter before he retired from active duty on 30 September 2009. The applicant contends that his records should be corrected to show he applied for the Post 9/11 GI Bill Transferability Program in order to transfer his education benefits to his dependent daughter before he retired from active duty on...
ARMY | BCMR | CY2012 | 20120013258
The applicant requests, in effect, correction of his records to show he applied to transfer his education benefits to his dependents under the provisions of the Post-9/11 GI Bill Transferability Program before he was released from active duty on 30 September 2009. Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of...
ARMY | BCMR | CY2012 | 20120013097
The applicant requests, in effect, correction of his records to show he applied for the Post-9/11 GI Bill Transferability Program to transfer his education benefits to his dependents before he was released from active duty on 31 August 2009. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members. As a result, the Board recommends that all Department of the Army records of the individual concerned be...
ARMY | BCMR | CY2012 | 20120002023
The applicant requests, in effect, correction of his records to show he applied for the Post-9/11 GI Bill Transferability Program to transfer his education benefits to his dependents before he was retired on 30 September 2009. Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization),...
ARMY | BCMR | CY2011 | 20110015957
Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. The applicant's request for correction of his record to show he applied for and the Army approved transferring his educational benefits under the Post-9/11 GI Bill to his dependents prior to his retirement from active duty on 30 September 2009 has been carefully considered and is found to have merit. As a result, the Board recommends that all...
ARMY | BCMR | CY2010 | 20100017960
Senator's (Maryland) Letter, dated 1 June 2010 * U. S. Army G-1, email correspondence, dated 7 July 2010 * Transfer of Post 9/11 GI-Bill Benefits to Dependents (TEB) extract from the VA website * Eligibility requirements for transferring benefits handout * Post 9/11 GI Bill Transferability Policy Quick Reference * Submitting a Request to Transfer Benefits * Eligibility Requirements for transferring benefits * DVA TEB Program Information * The Post 9-11 Veterans Educational Assistance Acto of...
ARMY | BCMR | CY2011 | 20110009936
Public Law 110-252, section 3319 provides the eligibility requirements necessary to transfer unused education benefits to family members. Notwithstanding the advisory opinion, and in view of the fact that information on transfer application procedures was not fully available at the time he began his transition, it would serve the interest of equity and fairness to correct his record to reflect he applied to transfer his education benefits under the Post-9/11 GI Bill Transferability Program...
ARMY | BCMR | CY2013 | 20130002364
Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR120120006838 on 18 October 2012. The applicant's request that his record be corrected to show he applied for and the Army approved transferring his benefits under the Post-9/11 GI Bill to his dependents prior to his retirement from active duty on 31 December 2009 has been carefully...
ARMY | BCMR | CY2011 | 20110008585
The applicant requests, in effect, correction of his records to show he applied for the Post-9/11 GI Bill Transferability Program to transfer his education benefits to his dependents before he retired from active duty on 30 September 2009. 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...
ARMY | BCMR | CY2012 | 20120008754
The applicant requests, in effect, correction of his records to show he applied for the Post-9/11 GI Bill Transferability Program to transfer his education benefits to his dependents before he was released from active duty on 31 October 2009. It is also reasonable to presume he would have transferred his education benefits to his dependents while he was on active duty had he known the requirements to do so, given that his spouse was eligible for the benefit. As a result, the Board...