IN THE CASE OF:
BOARD DATE: 7 July 2015
DOCKET NUMBER: AR20140020285
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 (ETP) to transfer educational benefits to her family members under the transfer of educational benefits provision of the Post-9/11 GI Bill.
2. The applicant states she retired four years prior to the establishment of the criteria for eligibility and transfer of unused education benefits to eligible family members. Therefore, she did not have the opportunity to transfer benefits to her eligible dependents while on active duty.
3. The applicant provides:
* 2 self-authored statements
* 2 letters
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 enlisted in the Regular Army on 12 September 1984. On 30 September 2004, she retired honorably after serving over 20 years of net active service.
3. The applicant provides a statement to a Member of Congress. She states she is a disabled Gulf War veteran who applied for the Post 9/11 GI Bill in 2011 when she was planning on pursuing a Bachelor's Degree in Nursing. Her plans changed and she now would like to transfer her benefits to her oldest son who needs the money for school. Unfortunately, only active duty members may transfer benefits to their dependents. However, the benefit was not signed into law until after she was retired; therefore, it was not possible for her to transfer the benefit while on active duty and she requests an ETP.
4. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. The law 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.
5. On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused education 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 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 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention was carefully considered. However, since she retired from the service prior to the implementation of the Post-9/11 GI Bill Transferability Program, she is not eligible to transfer benefits under the program to her family members by law.
2. The applicant served on active duty from 12 September 1984 through 30 September 2004. The law requires a member to be on active duty or in the Selected Reserve at the time the individual requests the transfer. The applicant was not on active duty or in the Selected Reserve at the time this program was implemented.
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 her case and as such, she 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) AR20140020285
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140020285
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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