IN THE CASE OF:  	  

		BOARD DATE:  19 May 2015	  

		DOCKET NUMBER:  AR20140017250


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, correction of his record to show he submitted a timely application to transfer his Post 9/11 GI Bill education benefits to his spouse.

2.  He states:

   a.  He would like to the opportunity to transfer education benefits (TEB) to his spouse.  He did not receive the briefing or have the ability to receive the briefing prior to his out-processing from the U.S. Army.  
   
   b.  He retired in June 2009 and was not afforded the opportunity to attend the briefing or have the ability to TEB to his spouse.  He has learned from former retired members that they have been grandfathered in from May 2009 till late 2010 to TEB to their dependents.  
   
   c.  He is also hoping to have the ability to TEB so that his spouse can attend college to enable his family to have a better quality of life.  
   
3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* letter from U.S. Army Installation Management Command, Headquarters, U. S. Army Garrison, Fort Drum, NY dated 17 September 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 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.  On 26 October 1987, the applicant enlisted in the Regular Army.  

3.  On 30 June 2009, the applicant retired from active duty as a sergeant first class (SFC)/E-7 after completing 21 years, 8 months and 5 days of active duty service.

4.  On 1 May 2013, after his retirement, the applicant states he found out through other retired service members that he should have been grandfathered into the Post 9/11 GI Bill since there was a period from approximately May 2009 to late 2010 that retired Soldiers were able to receive the Post 9/11 GI Bill benefits for their dependents.  

5.  The applicant provides a letter from the U.S Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Drum, NY, stating that the applicant "was not briefed on the Chapter 33 Post 9/11 GI Bill transferability option during the time he cleared the Fort Drum Education Center on 16 June 2009."

6.  On 22 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 an eligible individual is 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 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 Component service.

7.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, 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.  Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service.  A Soldier must currently be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009 (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  The requirement to transfer the benefits while a member is serving on active duty or in the Selected Reserve on or after 1 August 2009 is embedded in the law and a change to this law is not within the purview of this Board.

2.  The applicant provides a letter from the U.S Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Drum, NY, stating that the applicant "was not briefed on the Chapter 33 Post 9/11 GI Bill transferability option during the time he cleared the Fort Drum Education Center on 16 June 2009."  However, this is a moot point since he was not serving on active duty on or after 1 August 2009; therefore, he was not eligible to TEB to his dependents whether or not he received a briefing on the Post 9/11 GI Bill.

3.  There is neither an error nor an injustice in his case and, as such, he is not entitled to the requested relief.

4.  In view of the above, the applicant's request should be denied.



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)                                         AR20130017962



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ABCMR Record of Proceedings (cont)                                         AR20140017250



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