IN THE CASE OF:
BOARD DATE: 6 March 2015
DOCKET NUMBER: AR20140013120
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 an exception to policy to transfer his unused education benefits to his daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states:
* he was a member of the U.S. Army Reserve (USAR)
* he retired two months early (June 2009)
* during his retirement transition, he was not informed this benefit would be available in August 2009
* had he known, he would not have retired
* he attributes the poor communication by his unit to the fact he lives in Rochester, NY and his unit was in Devens, MA
* he is unable to rejoin the USAR to serve the additional 4 years that would be required were he able to take advantage of the TEB provision
* his daughter is a senior in high school and would be using the education benefit
* his wife received a letter from the Department of Veterans Affairs (VA) responding to her inquiry about the TEB; she was advised to have the applicant apply to the ABCMR
3. The applicant provides a letter from VA regarding TEB.
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 USAR on 28 August 1986. He served in multiple assignments, including a deployment to Iraq. He attained the rank/grade of sergeant first class/E-7.
3. He was assigned to the Retired Reserve effective 1 June 2009. He completed 21 years, 9 months, and 5 days of total service for retired pay.
4. On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states eligible individuals include 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 service.
5. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.
DISCUSSION AND CONCLUSIONS:
1. The applicant served in the USAR from 28 August 1986 through 31 May 2009 and was assigned to the Retired Reserve effective 1 June 2009. The DOD did not establish criteria for eligibility and transfer of unused educational benefits until 22 June 2009, a date after the applicant's assignment to the Retired Reserve. His unit therefore would not have been able to inform the applicant of this program prior to 22 June 2009. Additionally, the law requires a member to be on active duty or in the Selected Reserve on or after 1 August 2009 at the time he/she requests the transfer. The applicant was neither on active duty nor in the Selected Reserve at the time this program was implemented. Therefore, he was not eligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his daughter prior to his retirement.
2. The applicant's service and his sincerity are not in question. However, the requirements of this program are set in the law and changes to this law are not within the purview of this Board. There is neither an error nor an injustice in his case, and as such, he is not entitled to the 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) AR20140013120
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