IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140008517 


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 daughter.

2.  The applicant states:

   a.  during the period 2003 – 2006, the Army had a program that offered military members the opportunity to transfer VA education benefits;
   
   b.  his prior requests to transfer his GI Bill benefits were denied;
   
   c.  he recently met with the Board of Veterans Appeals where he was instructed to appeal to this Board for a review of his request;
   
   d.  he wants to be grandfathered into the VA transfer program and questions if he would have been able to transfer his education benefits to his daughter in 2003, as she was 9 years old at that time; and
   
   e.  his residency address where he has lived since 1996, and questions where were the notifications to the Veterans referencing the transfer program.

3.  The applicant provides:

* Army Review Boards Agency (ARBA) letter
* self-authored statement
* Department of Veterans Affairs (VA), internet document extract (2 pages)
* Notice of Disagreement (two self-authored documents)
* three VA Letters (Muskogee Regional Office, letter)
* Disabled American Veterans letter

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's record shows he initially enlisted in the U.S. Air Force (USAF) on 10 March 1971.  He continuously served in the USAF until he was honorably discharged on 15 April 1987, having completed 16 years, 1 month, and 6 days of creditable active duty service.

3.  On 26 January 1988, he enlisted in the Regular Army and continuously served until he retired from active duty on 31 December 1995.  The DD Form 214 issued him at that time shows he completed a total of 24 years and 11 days of creditable active duty service.

4.  The applicant provides an internet document extract wherein he highlights the following response which answers the question "Can I transfer my MGI Bill benefits to a spouse or dependent?" –

Although the Department of Defense created an MGIB transferability option in 2002, its implementation was up to the various service branches.  Only the Air Force and the Army ever offered this option (2003 and 2006 respectively) and both of those programs were eliminated due to low rates of participation.  No service branches currently allow MGIB recipients to transfer benefits.

5.  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).

6.  Title 38, U.S.C., Chapter 30, Section 3020 states the Secretary of Defense may authorize the Secretary concerned, to promote recruitment and retention of members of the Armed Forces, to permit an individual described in subsection (b) who is entitled to basic educational assistance under this subchapter to elect to transfer to one or more of the dependents (spouse or children), the unused portion of entitlement to such assistance, limited to the total number of months of entitlement transferred by an individual under this section up to 36 months.  The Secretary of Defense may prescribe regulations that would limit the months of entitlement that may be transferred under this section to no less than 18 months. 
Subsection (b) states eligible individuals are any member of the Armed Forces who, while serving on active duty or as a member of the Selected Reserve at the time of the approval by the Secretary concerned of the member’s request to transfer entitlement to basic educational assistance under this section, who have completed six years of service in the Armed Forces and enters into an agreement to serve at least four more years as a member of the Armed Forces.

7.  The Army had also passed a law in July 2006 to allow Soldier service in critical skills who reenlist the ability to transfer MGIB benefits to their spouses.

DISCUSSION AND CONCLUSIONS:

1.  The applicant intermittently served on active duty from 10 March 1971 until he retired from the Army on 31 December 1995.  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 (or July 2006; there is no indication the Army was affected by a 2003 transfer) are eligible to transfer education benefits under the provisions of the Post-9-11 GI Bill.

2.  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.

4.  As it relates to the applicant's request to be grandfathered into the VA educational program offered between 2003 and 2006, the governing law states that this benefit was used by the Secretaries concerned to promote recruitment and retention of members of the Armed Forces and it was offered to members serving on active duty or in the Selected Reserve at that time.  The evidence of record confirms the applicant retired from the Army on 31 December 1995.  Therefore, he was not serving on active duty when this benefit was extended to promote recruitment or retention and, as such, there is no basis to grant the requested relief in this case.

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)                                         AR20140008517





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ABCMR Record of Proceedings (cont)                                         AR20140008517



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