IN THE CASE OF:
BOARD DATE: 10 February 2015
DOCKET NUMBER: AR20140011197
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 November 2004 after completing more than 30 years of active duty service in the Regular Army (RA). He states that he met the eligibility criteria of serving on active duty for a minimum of 90 days and at least 36 cumulative months after 10 September 2001 before he honorably retired from active duty. However, he was never informed of the rules and regulations associated with transferring his remaining educational benefits to his dependents prior to his retirement. He adds that the Department of Veterans Affairs (VA) granted him service connection for his disabilities that are rated at 70 percent.
3. The applicant provides a VA Form 21-4138 (Statement in Support of Claim), dated 12 June 2014, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 RA on 4 November 1974. Through a series of reenlistments in the RA, he continued to serve on active duty. He attained the rank of sergeant major/pay grade E-9 on 1 May 1997.
3. A DD Form 214 shows the applicant was honorably retired from active duty on 30 November 2004, based on sufficient service for retirement, and transferred to the U.S. Army Reserve (USAR) Control Group (Retired) effective 1 December 2004. He had completed 30 years and 27 days of total active duty service.
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 (emphasis added) 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) effective 1 December 2004.
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) AR20140011197
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ABCMR Record of Proceedings (cont) AR20140011197
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