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ARMY | BCMR | CY2015 | 20150003977
Original file (20150003977.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	     2 April 2015

		DOCKET NUMBER:  AR20150003977 


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 members under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he retired on 31 July 2009 one day before the program to transfer education benefits took effect.  He strongly feels it is an injustice that he is unable to transfer his education benefits based on missing the effective date by one day.

3.  The applicant provides a printout of an online page from Military Connect (MilConnect) showing his dependents' ineligibility for the TEB program.

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 24 July 1989.  After completing initial training, he was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  He later changed his MOS to that of 44C (Financial Management Technician).

3.  He served in a variety of stateside and/or overseas assignments and attained the rank/grade of sergeant first class (SFC)/E-7.

4.  He retired on 31 July 2009 and he was placed on the Retired List in the rank of SFC.  He completed 20 years and 7 days of net active creditable service.

5.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states TEB may be approved for 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 years in the Armed Forces from the date of election; or

	b.  has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve (i.e., qualifying service)) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute; or

	c.  is or becomes retirement eligible during the period from 1 August 2009 through 1 August 2013.  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.

6.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  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 Retired List on 1 August 2009. (emphasis added)



DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 24 July 1989 to 31 July 2009.  The law requires a member to be serving on active duty or in the Selected Reserve on or after 1 August 2009 at the time he/she requests TEB.  

2.  The applicant was neither on active duty nor in the Selected Reserve when the program was implemented.  Therefore, he is not eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill.

3.  The requirements of this program are set in the law and any changes to the law are not within the purview of this Board.  There is neither an error nor an injustice in his case and, as such, he is not entitled to the requested relief.  In view of the foregoing, 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)                                         AR20150003977



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ABCMR Record of Proceedings (cont)                                         AR20150003977



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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