IN THE CASE OF:  	  

		BOARD DATE:  14 April 2015	  

		DOCKET NUMBER:  AR20140015351 


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 transfer of his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his daughter.

2.  The applicant states he would like to transfer his education benefits to his daughter to use for college.  The program to transfer education benefits to family members under TEB did not exist when he was released from active duty in 2004.  He was unaware of the rules and regulations.  He returned from Iraq with a Purple Heart, hearing loss, post-traumatic stress disorder, and a traumatic brain injury.  It took him 3 years to recover.  He is just now becoming more able to pick up the pieces and go through the proper documentation and medical processes with the Department of Veterans Affairs.

3.  The applicant provides no additional evidence.

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.  Having had prior active duty service, the applicant enlisted in the Army National Guard (ARNG) on 15 June 1996.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 26 September 2001.

3.  He was ordered to active duty as a member of his ARNG unit in support of Operation Iraqi Freedom and he entered active duty on 25 January 2003.  He served in Kuwait and Iraq during this period of active duty service.

4.  He was honorably released from active duty on 26 May 2004 in the rank of SGT to the control of his ARNG unit.  It appears he was honorably discharged from the ARNG on or before 24 August 2004. 

5.  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 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.

6.  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:

   a.  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.

	b.  A Soldier must initially request to transfer benefits on the DOD TEB online database.  The TEB online database was operational 29 June 2009.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access.  The respective dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits. 

7.  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 on or after 1 August 2009.  A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her dependent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests transfer of his Post-9/11 GI Bill educational benefits to his daughter under the TEB.  However, the program was not implemented until July 2009 and the law required a person to be on active duty or serving as a member of the Selected Reserve on or after 1 August 2009 in order to be eligible.  His last day of active duty service was 26 May 2004 and his last day in the ARNG was on or before 24 August 2004.  Therefore, he was ineligible to transfer his educational benefits to his daughter.

2.  The requirement to transfer the benefits while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board.  Therefore, 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)                                         AR20140015351





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ABCMR Record of Proceedings (cont)                                         AR20140015351



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