IN THE CASE OF:
BOARD DATE: 20 August 2015
DOCKET NUMBER: AR20150000783
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, in effect, correction of his records to show he elected to transfer his education benefits to his dependents in accordance with the Transfer of Educational Benefits (TEB) provision of the Post 9/11 GI Bill.
2. The applicant states he was unaware of the rules and regulations.
3. The applicant provides a Department of Veterans Affairs (VA) Statement in Support of Claim.
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. After completing 20 years of creditable service for retired pay, the applicant was discharged from the Florida Army National Guard on 19 July 2008 and placed on the Temporary Disability Retired List (TDRL) on 20 July 2008, in the rank of staff sergeant (E-6). He was removed from the TDRL on 6 July 2012 and he was permanently retired due to physical disability.
3. 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.
4. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational 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's contentions have been noted.
2. The evidence of record shows he was not eligible to transfer his educational benefits under the TEB prior to retirement because he retired on 20 July 2008 and the program was not implemented until 1 August 2009, which was over 1 year after his retirement.
3. In view of the foregoing, his request should be denied.
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) AR20150000783
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ABCMR Record of Proceedings (cont) AR20150000783
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