IN THE CASE OF:  	  

		BOARD DATE:  21 July 2015	  

		DOCKET NUMBER:  AR20140019286 


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 correction of his record to show he transferred his education benefit to his daughter under the Transfer of Educational Benefits (TEB) provision of the Post 9-11 GI Bill.

2.  The applicant states he was improperly briefed during retirement. 

3.  The applicant provides no documentation in support of his request. 

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, a career U.S. Army Reserve (USAR) noncommissioned officer, received a Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 28 October 1999.  He was promoted to master sergeant (pay grade E-8) on 16 July 2004 and was last mobilized from May 2007 to July 2008 for service in Iraq.  He was released from active duty and transferred back to his USAR unit.

3.  Physical examinations in January and February 2010 identified him as being at risk for cardiovascular problems and resulted in a physical profile that restricted him from a noisy environment and from firing weapons.  The applicant was voluntarily transferred to the Retired Reserve on 18 April 2011. 

4.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members.  The Public Law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.

	a.  An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, does not have an adverse action flag and has completed at least:

		(1)  6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces;

		(2)  10 years of service in the Armed Forces on the date of election and cannot commit to 4 additional years due to a Retention Control Point (RCP) or Mandatory Retirement Date (MRD) must commit to serve for the maximum amount of time allowed by either RCP or MRD as of the date of request, regardless of the number of months transferred; or

		(3)  the years of service as determined in Army regulations and established by the Secretary of the Army.

	b.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows:

		(1)  to the individual's spouse;

		(2)  to one or more of the individual's children; or

		(3)  to a combination of the individuals identified above.
   c.  Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.

5.  When the TEB program was initiated in 2009, the Army, DOD, and Department of Veterans Affairs (VA) initiated a public information campaign that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and the TEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was eligible to transfer his educational benefits under the Post-9/11 GI Bill transferability program prior to retirement.  

2.  The Department of the Army, DOD, and the VA initiated a publicity campaign that generated communications through military, public, and social media venues.  Information on the Post-9/11 GI Bill and subsequent transfer of entitlements was published well in advance of the implementation date of 1 August 2009.  

3.  The applicant was an active member or the USAR when the TEB transfer program came into existence and for about 2 years thereafter.  It appears that he had a sufficient opportunity to familiarize himself with the program.

4.  There is no evidence that he attempted to transfer his educational benefits to family members at any time prior to retirement. 

5.  Unfortunately, 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)                                         AR20140019286



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ABCMR Record of Proceedings (cont)                                         AR20140019286



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