IN THE CASE OF:
BOARD DATE: 23 June 2015
DOCKET NUMBER: AR20140019248
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 education benefits to his family member under the transfer of education benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states:
* he did not have the opportunity to choose to have his child use his Post 9/11 education benefits because he was separated from active duty in October 2006
* he was later separated from the Colorado Army National Guard (COARNG) on 21 July 2009
* both dates occurred prior to the activation of the Post 9/11 GI Bill transferability (August 2009); thus, he was unaware of the transfer rules
* he can only use this benefit for himself but other Soldiers have a choice and he wants the same choice
* he wants to use the benefits for his daughter; this would allow uniform standards to all those who served our country honorably
3. The applicant provides his 2006 DD Form 214 (Certificate of Release or Discharge from Active Duty) and orders transferring him to the Retired Reserve.
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 was born in December 1954.
3. Having had prior service, he enlisted in the COARNG on 27 October 1988. He served through multiple extensions in a variety of assignments and he attained the rank/grade of staff sergeant (SSG)/E-6.
4. He entered active duty on 6 July 2001 and he was honorably released from active duty on 27 October 2006.
5. On 30 January 2007, the COARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).
6. On 18 August 2009, COARNG published Orders 230-002 separating him from the ARNG and transferring him to the Retired Reserve effective 21 July 2009.
7. He was honorably discharged from the ARNG on 21 July 2009 and he was transferred to the Retired Reserve. His NGB Form 22 (Report of Separation and Record of Service) shows he completed over 22 years and 9 months of service for pay.
8. On 16 January 2015, the U.S. Army Human Resources Command published orders placing him on the Retired List in his retired rank/grade of SSG/E-6 effective 21 December 2014, his 60th birthday.
9. 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.
10. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused education 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 in the ARNG from 27 October 1988 to 21 July 2009 (with prior service). 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 was transferred to the Retired Reserve on 21 July 2009, before the law became effective.
2. He was neither on active duty nor in the Selected Reserve at the time the Post 9-11 transferability 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. 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) AR20140019248
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ABCMR Record of Proceedings (cont) AR20140019248
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