BOARD DATE: 19 March 2015
DOCKET NUMBER: AR20140012542
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, a waiver of the eligibility criteria requiring her to transfer her education benefits to her dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to being discharged from the military.
2. The applicant states she was honorably discharged from active duty due to parenthood.
a. She redeployed from Afghanistan to the United States for separation processing. At the time, she was unaware of any programs that would allow her to transfer her remaining education benefits to her dependent.
b. One year later, a bill was passed to allow the transfer of education benefits. She was told that since she was already separated from military service there was nothing she could do. On occasion, she continued to inquire into the matter, but was always told that she was not eligible. She recently spoke with a Department of Veterans Affairs (VA) service representative who advised her to apply to the Army Board for Correction of Military Records (ABCMR).
c. She adds that, if she had been given the opportunity to transfer her educational benefits, she would have done so, even if it required her to pay more into her Montgomery GI Bill or enlist in the U.S. Army Reserve.
3. The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), information on her reenlistment eligibility (RE) code, and the rules for transferring GI Bill benefits.
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 10 November 1999 for a period of 5 years. She then reenlisted in the RA on 18 June 2004.
a. She deployed overseas with her unit to
* Kosovo from 15 November through 31 December 2000
* Iraq from 6 September 2005 through 21 August 2006
* Afghanistan from 6 January through 7 June 2008
b. She attained the rank of specialist/pay grade E-4 on 31 March 2008.
3. A DD Form 214 shows the applicant was honorably discharged from the RA on 15 October 2008 based on parenthood. She had completed 9 years and
6 days of total active duty service. Item 27 (Reentry Code) shows RE code "3."
4. A review of the applicant's Official Military Personnel File failed to reveal evidence that she served in the Selected Reserve subsequent to her discharge.
5. In support of her application the applicant provides the following documents.
a. An article from the website http://usmilitary.about.com (Military RE Code, U.S. Army) that shows, in pertinent part, "RE-3 Individuals who are not qualified for continued Army service, but the disqualification is waiverable [sic]. Ineligible for enlistment unless a waiver is granted."
b. An article from the website http://newgibill.org (New Rules for Transferring GI Bill Benefits, dated 30 June 2009), that provides information on transferring Post-9/11 GI Bill benefits starting in August 2009.
6. 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 (emphasis added) to transfer unused educational benefits to eligible family members. This 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. The law identified the qualifying Title 10 and Title 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill.
b. The Post-9/11 GI Bill TEB Program was implemented on 1 August 2009.
c. Eligibility to transfer unused benefits is limited to those members of the U.S. Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends her education benefits should be transferred to her dependents under the TEB provision of the Post-9/11 GI Bill because she was not aware of any programs that would allow her to transfer her remaining education benefits to her child at the time of discharge and, therefore, she should be granted a waiver.
2. Records show the applicant was discharged from the RA effective 15 October 2008.
3. The law provides that a service member must have been serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 in order to be eligible to transfer unused education benefits to eligible family members.
4. The applicant was not serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. Therefore, she is not eligible for the
Post-9/11 GI Bill transferability option. Moreover, the ABCMR does not have the authority to grant a waiver of the eligibility criteria established in the statute.
5. Considering all the evidence and information presented by the applicant, together with the evidence of record, 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.
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