BOARD DATE: 15 October 2015
DOCKET NUMBER: AR20150002616
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 educational benefits to his family members under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states the rules were not in place when he retired in 2003.
3. The applicant provides a Department of Veterans Affairs Form 21-4138 (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. The applicant enlisted in the Regular Army on 15 October 1980 and he held a military police specialty.
3. He retired on 31 January 2003 and he was placed on the retired list in his retired rank/grade of MSG/E-8 on 1 February 2003. He was credited with over 22 years and 3 months of active service.
4. 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.
5. 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 may transfer education benefits to eligible dependents.
DISCUSSION AND CONCLUSIONS:
1. The law requires a member to be on active duty or in the Selected Reserve on or after 1 August 2009 at the time he/she requests the transfer of Post 9/11 GI Bill education benefits. The applicant retired on 31 January 2003, 6 years before the law became effective.
2. He was neither on active duty nor in the Selected Reserve at the time was this program implemented. Therefore, he is not eligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his family members.
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.
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) AR20150002616
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20150002616
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2014 | 20140014094
On 17 July 2014, he was informed by Mr. T____ E____, VA Education Services, that the application for the TEB option should have been offered to him prior to separation from the service. However, this was the first time he learned there was a requirement to be approved for TEB prior to separation from the service and this option should have been offered to him upon his release from the NCARNG and at the time of retirement. He is asking that the Board correct his records to show he requested...
ARMY | BCMR | CY2012 | 20120008643
The advisory official recommended disapproval of the applicant's request because the applicant was not a member of the service on or after 1 August 2009. The applicant in this case had more than sufficient years of service upon his retirement, but he was not eligible to transfer the benefit because the law requires Soldiers to be in the service on or after 1 August 2009. c. A Soldier may only transfer to eligible family members. The policy states, in part, that those who retire on or...
ARMY | BCMR | CY2014 | 20140013780
The applicant, the spouse of a former service member (FSM), requests, in effect, approval of an exception to policy to transfer the FSM's unused education benefits to his dependent under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the...
ARMY | BCMR | CY2013 | 20130005799
The applicant requests correction of his records to show he made a timely application, prior to his effective date of retirement, to transfer his unused education benefits to his eligible dependent, in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. The evidence shows the applicant was fully eligible to transfer his unused education benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement date of 30 September 2009. As a...
ARMY | BCMR | CY2014 | 20140017431
The applicant states, in effect, he: * served in Iraq and Kuwait from 27 December 2002 to 24 November 2004 * was placed on active duty medical extension (ADME) after being injured * had five operations on his right shoulder and a laminectomy on his back involving the removal of two discs with instrumented fusion * was medically retired and placed on the Temporary Disability Retired List (TDRL) effective 16 January 2008 * was removed from the TDRL on 29 October 2009 and permanently retired *...
ARMY | BCMR | CY2014 | 20140015550
The evidence shows the applicant was fully eligible to transfer his unused education benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement date of 12 September 2009. Therefore, as a matter of equity, his records should be corrected to show he made a timely application to transfer at least 1 month of his unused education benefits to his eligible dependents, in accordance with the TEB provisions of the Post-9/11 GI Bill, prior to his transfer to the Retired Reserve...
ARMY | BCMR | CY2014 | AR20140008818
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. 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. ...
ARMY | BCMR | CY2012 | 20120009030
The applicant in this case had more than 6 years of service upon her retirement, but she was not eligible to transfer the benefits because the law requires Soldiers to be in the service on or after 1 August 2009. c. A Soldier may only transfer benefits to eligible family members. The TEB online database shows the applicant had no eligible family members to transfer the benefit to because she was not in the service on or after 1 August 2009. If the applicant had been in the service on or...
ARMY | BCMR | CY2014 | 20140015351
The program to transfer education benefits to family members under TEB did not exist when he was released from active duty in 2004. 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 and: a. has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional...
ARMY | BCMR | CY2012 | 20120010287
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. A Soldier must have at least 6 years of eligible service in order to transfer education benefits to a spouse and at least 10 years of eligible service to transfer to eligible children. There is insufficient evidence that shows the applicant submitted a request to transfer his education benefits to his family member(s) while on active duty or...