BOARD DATE: 12 March 2015
DOCKET NUMBER: AR20140013780
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, the spouse of a former service member (FSM), requests, in effect, approval of an exception to policy to transfer the FSM's unused education benefits to his dependent under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states, in effect, that the FSM would like to transfer his unused education benefits to his daughter.
3. The applicant provides a signed and notarized general power of attorney and a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 31 July 2014.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 5 July 1983, the FSM enlisted in the Regular Army. He held military occupational specialty (MOS) 19K (M1 Armor Crewman) and attained the rank/grade of sergeant/E-5.
3. On 31 July 2003, the FSM was retired after completing 20 years and 26 days of net active service. On 1 August 2003, the FSM was placed on the Retired List.
4. On 22 June 2009, Department of Defense (DOD) established the criteria for the eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible individual is any member of the Armed Forces on or after 1 August 2009 (emphasis added) 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 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 which 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 contends the FSM should be granted an exception to policy to transfer his unused education benefits under the provision of the TEB.
2. Her contention is without merit because regardless of the underlying reason for her request, the evidence of record shows the FSM retired from active duty on 31 July 2003. Accordingly, he was not on active duty or in an active status as a member of the Selected Reserve on 1 August 2009.
3. The law requires a member to be in an active status at the time he/she requests the transfer. 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 was prior to 31 July 2009 and they would have transferred to the Retired List prior to 1 August 2009.
4. In view of the foregoing, by law he is not eligible to transfer his educational benefits to his dependents under the TEB provisions of the Post-9/11 GI Bill.
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) AR20110007920
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ABCMR Record of Proceedings (cont) AR20140013780
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