IN THE CASE OF:
BOARD DATE: 7 April 2015
DOCKET NUMBER: AR20140015079
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 spouse under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he was not informed that he had to transfer his Post-9/11 GI Bill benefits to his spouse prior to his release from active duty.
3. The applicant does not provide any additional information.
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 on 2 August 2006. After completing initial entry training, he was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).
3. On 17 February 2012, a physical evaluation board (PEB) found him to be physically unfit for continued military service. He was medically retired on 27 May 2012 and placed on the Retired List effective 28 May 2012.
4. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years, 9 months, and 21 days of net active service this period.
5. Department of Defense (DOD) Directive-Type Memorandum (DTM) 09-003, dated 22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members.
a. Eligible individuals include members of the Armed Forces on or after 1 August 2009 who, at the time of the approval of their request to transfer entitlement to educational assistance under this section, are eligible for the Post-9/11 GI Bill, and:
b. have at least 6 years of service in the Armed Forces on the date of election and agree to serve 4 additional years in the Armed Forces from the date of election; or
c. have at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, are precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agree to serve for the maximum amount of time allowed by such policy or statute; or
d. were or became 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.)
DISCUSSION AND CONCLUSIONS:
1. The applicant was placed on the Retired List after the provisions for transfer of Post-9/11 GI Bill education benefits to dependents went into effect. At the time of his placement on the Retired List he had completed 5 years, 9 months, and 21 days of total service. Based on his total service, he does not qualify for transfer of education benefits under any of the categories defined in DOD DTM 09-003.
2. In view of the foregoing, there is no basis for granting 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) AR20140015079
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ABCMR Record of Proceedings (cont) AR20140015079
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