BOARD DATE: 20 August 2015
DOCKET NUMBER: AR20150000938
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 to transfer education benefits to his family member under the transfer of education benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states that this benefit did not exist until August 2009, four years after he was medically retired due to a permanent disability, but had it not been for his medical conditions, he would have continued his military career. Since his retirement he has had multiple surgeries, is currently house-bound, and is 100 percent disabled. He has to pay 20 percent of his medical expenses. It would be a financial benefit for him and his family to transfer his Post 9/11 GI Bill education benefits to his dependent child.
3. The applicant provides a self-authored statement.
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 retired on 9 December 2004 due to permanent disability after serving over 26 years of net active military service. On 31 July 2006 the Department of Veterans Affairs rated the applicant as 100 percent disabled with entitlement to special monthly compensation based on housebound criteria.
3. Public Law 110-252 established the legal limitations on the transferability of unused Post 9/11 GI Bill benefits. The law limits eligibility to transfer unused education 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request was carefully considered. However, because he retired from the service prior to the implementation of the Post-9/11 GI Bill Transferability Program, he is not eligible to transfer benefits under the program to his family members by law.
2. The applicant retired on 9 December 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 his case, and as such 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.
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