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ARMY | BCMR | CY2014 | 20140012772
Original file (20140012772.txt) Auto-classification: Denied

		IN THE CASE OF:  	  

		BOARD DATE:  6 March 2015	  

		DOCKET NUMBER:  AR20140012772 


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, an exception to policy to transfer his Post 9/11 MGIB educational benefits to his spouse.

2.  The applicant states he was unaware that he could transfer his education benefit prior to being honorably discharged.  He wants to transfer his educational benefit to his spouse so she can complete her nursing degree.

3.  The applicant provides no additional documentation.

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.  On 1 November 2002, the applicant enlisted in the U.S. Army Reserve (USAR) in the Delayed Entry Program.  He subsequently enlisted in the Regular Army (RA) on 20 August 2003 for 2 years.

3.  The applicant's DD Form 2366 (Montgomery GI Bill Act of 1984 (MGIB)) indicates that he read the form and accepted the conditions.  He did not decline to participate in the MGIB program.

4.  On 6 November 2006, the applicant was honorably released from active duty (REFRAD).  He had attained the rank of specialist, pay grade E-4 and had completed 3 years, 2 months, and 17 days of creditable active duty service.  He was transferred to the Individual Ready Reserve (IRR).

5.  Orders B-10-706841, U.S. Army Human Resources (HRC) Command, dated 11 October 2007, announced the applicant's promotion to sergeant, pay 
grade E-5 effective 10 September 2007.

6.  Orders A-10-721437, HRC, dated 24 October 2007, announced the applicant's call to active duty as an USAR Soldier, for operational support under the provisions of Title 10, U.S. Code, section 12301 for a period of 
1 year, 11 months, and 29 days ending on 25 October 2009.  He was assigned to the U.S. Army Recruiting Command in Mission Viejo, California.

7.  On 25 October 2009, the applicant was honorably REFRAD and transferred to the IRR.  He had completed 1 year, 11 months, and 29 days of creditable active duty service during this period; had a total active duty service of 5 years, 
2 months, and 16 days; and a total of 6 years, 11 months, and 25 days of service in the Armed Forces.

8.  Orders D-11-018638, HRC, dated 2 November 2010, announced the applicant's honorable discharge from the USAR effective that same day.  He had completed a total combined service (RA and USAR) of 8 years and 2 days.

9.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, Public Law 110-252, section 3020, limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve.  Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service.  A Soldier must currently be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009.

10.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service, individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

11.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused education 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 and 

	a.  has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election, or

	b.  has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute, or

	c.  is or becomes retirement eligible during the period from 1 August  2009 through 1 August 2013.  A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve Component service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was granted an exception to policy to transfer his Post 9/11 MGIB educational benefits to his spouse so she can complete her nursing degree.

2.  The available evidence shows the applicant at the time of his REFRAD in October 2009 had completed 6 years, 11 months, and 25 days of service in the Armed Forces.  Therefore, in order to have been eligible to transfer his educational benefit he was required to extend his service commitment for an additional 4 years.

3.  There is no available evidence showing that the applicant would have been willing or able to commit to an additional 4 years of military service.  He was subsequently discharged a little over 1 year later.

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20130013194



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ABCMR Record of Proceedings (cont)                                         AR20140012772



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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