IN THE CASE OF:	  

		BOARD DATE:	    14 January 2014

		DOCKET NUMBER:  AR20130008808 


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 that he be allowed to transfer his education benefits to his children under the transfer of education benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he did not have the option to transfer the benefits while he was on active duty.  He returned from a tour in Iraq in May 2006 and did not learn of the Post-9/11 GI Bill until after his retirement in May 2007.  He was told that he was not entitled to the education benefit because he was no longer in an active status.  He did not leave the service voluntarily but was separated due to his mandatory removal date.

3.  The applicant provides no additional documentation in support of his request.

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.  On 31 May 2007, the applicant was honorably separated from the Army National Guard and transferred to the U.S. Army Reserve (USAR) Control Group (Retired) by reason of maximum allowable age.

3.  Public Law 110-252 established the Post-9/11 GI Bill and authorized transfer of unused education benefits to eligible dependents.  The law limits eligibility to transfer unused education benefits to those members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.

DISCUSSION AND CONCLUSIONS:

Public Law 110-252 established 1 August 2009 as the effective date of the Post-9/11 GI Bill provisions for TEB.  The applicant was placed in the USAR Control Group (Retired) on 31 May 2007 before this provision of law went into effect.  Unfortunately, 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)                                         AR20130008808





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ABCMR Record of Proceedings (cont)                                         AR20130008808



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