IN THE CASE OF:
BOARD DATE: 29 January 2015
DOCKET NUMBER: AR20140008818
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 records to show he transferred his educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to retiring from military service.
2. The applicant states he retired in 2005 after completing 21 years of service in the U.S. Army Reserve (USAR). He was never informed of the new educational benefit that was approved in 2008. The Department of Veteran Affairs (VA) has granted him service-connection for his disabilities with a combined rating of
60 percent. He now knows that he needs to request transfer of his educational benefits to his dependent children.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), ARPC Form 249-E (Chronological Statement of Retirement Points), and VA rating letter.
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 USAR on 7 March 1984. Through a series of reenlistments, he continued to serve in the USAR. He attained the rank of master sergeant/pay grade E-8.
3. A DD Form 214 shows he was ordered to active duty on 24 February 2003, honorably released from active duty on 4 May 2004, and transferred to a USAR unit.
4. Headquarters, 91st Division (Training Support), Dublin, CA, Orders Number 05-076-00013, dated 17 March 2005, reassigned the applicant to the USAR Control Group (Retired Reserve) based on completion of 20 or more years of qualifying service effective 16 April 2005.
5. 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. This 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. The law identified the qualifying Title 10 and Title 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill.
b. The Post-9/11 GI Bill TEB Program was implemented on 1 August 2009.
c. Eligibility to transfer unused benefits is limited to those members of the U.S. Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his educational benefits should be transferred to his dependents under the TEB provision of the Post-9/11 GI Bill because he was never informed of the requirement to transfer the benefit before he retired from military service.
2. Records show the applicant was transferred to the USAR Control Group (Retired Reserve) effective 16 April 2005.
3. The law provides that a service member must have been serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 in order to be eligible to transfer unused benefits to eligible family members.
4. The applicant was not serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. Therefore, he is not eligible for the
Post-9/11 GI Bill transferability option.
5. Considering all the evidence and information presented by the applicant, together with the evidence of record, there is no basis for granting the applicant's 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) AR20140008818
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ABCMR Record of Proceedings (cont) AR20140008818
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