IN THE CASE OF:	  

		BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140013416 


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 GI Bill education benefits to his son.

2.  The applicant states:

   a.  The Transfer of Education Benefits (TEB) began in June 2009.  He retired on 7 November 2007.  He was never informed before he retired in 2007 that he had to transfer these benefits before he retired.  He has these benefits and he feels he should be able to transfer them to his son.  The transfer form would not have been signed at the time of his retirement since the program was not approved until 2 years after he retired.

   b.  He was counting on these benefits for his son to be able to attend college. He was recently informed that his benefits should have been transferred before he retired.  Everything that he has read stated that if an individual was retired as of 2009 they would be able to transfer their benefits to their child.  He was not given any information about transferring his benefits before he retired in 2007.  

   c.  This makes no sense to him.  He is almost 60 years of age and he is not going to use these benefits for himself.  It is not fair that he has them and cannot transfer them.  He hasn't been around his son as much as he should have been. This is the one thing that he thought he could do for his son.  He earned these benefits and he should be able to transfer them to his son.
   
   d.  He and his son are enrolled in the Defense Enrollment Eligibility Reporting System.  His son has been enrolled at the Savannah College of Art and Design (SCAD) since 16 September 2013 as a full-time student.  He can't afford to pay for his child to attend college.  His son has had to get student loans to attend college.  If his son had his benefits he would not have to borrow money to attend college.  His son would not have to start his career so deep in debt in 4 years.

   e.  He is going to pass this matter on to a Member of Congress for review.  He wants to be able to change the law so every service member that served their time and qualified for benefits will be able to transfer them to their dependents.

3.  The applicant provides copies of the following:

* DD Form 214 (Report of Separation from Active Duty) ending on 12 November 1975
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 2 October 2003 and 19 March 2006
* Memorandum for Record (MFR)
* Orders Number 07-311-00001
* Department of Veterans Affairs (VA) Certificate of Eligibility
* VA Form 22-1990E
* Direct Deposit/Automatic Payment Information Form
* letter from the VA
* Post-9/11 GI Bill Transferability information sheet

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Alabama Army National Guard (ALARNG) on 25 November 1975, with prior Regular Army and U.S. Army Reserve enlisted service.  

3.  On 2 October 2002, he was issued a 20-Year letter.

4.  He served on active duty in support of Operations Noble Eagle and Enduring Freedom from 27 January through 2 October 2003 and from 11 January 2005 through 19 March 2006.  

5.  He provided copies of the following:

   a.  An MFR, dated 4 October 2007, wherein his company commander stated that the applicant had obtained 20 qualifying years towards retirement eligibility, the applicant had no desire to remain in the Reserve, and he recommended the applicant's transfer to the Retired Reserve.

   b.  Orders Number 07-311-00001, dated 7 November 2007, transferring him to the Retired Reserve effective 7 December 2007, by reason of completion of 20 or more years of qualifying service for retired pay at age 60.

   c.  A VA Certificate of Eligibility, dated 21 August 2013, wherein he was advised of his entitlement to education or training benefits.

   d.  A VA Form 22-1990E his son completed and signed on 16 September 2013 for the transfer of the applicant's education benefits to him to attend SCAD.

   e.  Direct Deposit/Automatic Payment Information Form (self-explanatory).

   f.  A letter, dated 3 October 2013, wherein the VA advised his son of the transfer program eligibility criteria and denial of his claim because there was no evidence of a transfer form signed by the applicant.  

   g.  A Post-9/11 GI Bill Transferability information sheet (self-explanatory).

6.  Orders C08-497106, issued by the U.S. Army Human Resources Command on 15 August 2014, placed him on the retired list on 9 September 2014.

7.  On 29 June 2009, the Department of Defense (DoD) established the criteria for eligibility and transfer of unused educational 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 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 a 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 of DoD) or statute from committing to 4 additional years and agrees to service for the maximum amount of time allowed by such policy or stature; or
   
   c.  is or becomes retirement eligible during the period 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 service or 20 qualifying years of Reserve service.

8.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the Selected Reserve (ALARNG) from 25 November 1975 through 7 December 2007.  The Post-9/11 GI Bill TEB program was not in effect during his period of military service.  The law required 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.  Unfortunately, he is not eligible to transfer his education benefits under the TEB provisions of the Post-9/11 GI Bill.

2.  The requirements of this program are set in the law and any 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)                                         AR20140013416



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ABCMR Record of Proceedings (cont)                                         AR20140013416



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