BOARD DATE: 4 June 2015
DOCKET NUMBER: AR20140017406
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 educational benefits to his family member under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he retired in 2005 but this benefit was not available until 2009 with a caveat that in order to transfer the benefit to his dependents he has to do so before he retired. The law is unjust to those who served after September 2001 and served in combat but retired before 2009, like himself. The period of 6 years between 1999 and 2005 were the hardest not just for himself but also for his family as they all had to sacrifice for democracy and peace. All he wants is to be allowed to transfer the benefit to his daughter.
3. The applicant does not provide any 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. The applicant's records show he enlisted in the Regular Army on 22 January 1985. He served in a variety of assignments and he was advanced to the rank/grade of staff sergeant (SSG)/E-6.
3. He retired on 30 September 2005 and he was placed on the Retired List in his retired rank/grade of SSG/E-6 on 1 October 2005. He completed 20 years, 8 months, and 9 days of active service.
4. Public Law 110-252 limits the eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve.
5. On 22 June 2009, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant served on active duty from January 1985 to September 2005. The law requires 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. The applicant retired on 30 September 2005, some 4 years before the law became effective.
2. He was neither on active duty nor in the Selected Reserve at the time this program was implemented. Therefore, he is not eligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his family members.
3. 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) AR20140017406
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