BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20160001068 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20160001068 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20160001068 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 (daughter) under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states he is currently unable to transfer his GI Bill benefits since he retired on 31 August 2008, 1 year prior to the change in the Department of Defense regulation which allows service members to transfer their benefits to their dependents. He served proudly and faithfully in the U.S. Army for over 26 years (active duty and Reserve), while sacrificing time away from his family in order to serve our country. He is very thankful to have his GI Bill entitlements. He is 55 years old and has two college degrees. Since he retired from the military service and has his civilian job, he believes it would be more prudent to allow his daughter to use his GI Bill to complete her college education. This would ease a significant financial hardship on him and his family, as well as relieving her of a large financial debt by not having to take out expensive education loans that will have a long-term impact on her financial future. 3. The applicant provides: * GI Bill Certificate of Eligibility * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 21 July 1982. He entered active duty on 23 August 1982 and served in a variety of assignments. 3.  He was honorably released from active duty on 18 December 1990 and transferred to the U.S. Army Reserve Control Group (Reinforcement). Following his release from active duty, he served in a variety of troop program units. 4.  In May 2001, he was promoted to lieutenant colonel and the U.S. Army Reserve Personnel Command issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) in September 2003. 5.  He was mobilized in support of Operation Enduring Freedom and served on active duty from 6 September 2005 to 31 July 2007. 6.  In July 2008, his higher headquarters published orders transferring him to the Retired Reserve effective 31 August 2008. He was credited with over 25 qualifying years of service for Non-Regular retirement. REFERENCE: 1. The Post-9/11 Veterans Educational Assistance Act of 2008 improves educational benefits for certain individuals serving on active duty in the Armed Forces on or after 11 September 2001. 2. 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 an eligible individual is 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) 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 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. 2. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance for 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. DISCUSSION: 1. The applicant completed in excess of 25 years of active and inactive service. He transferred to the Retired Reserve on 31 August 2008. The Retired Reserve is not a category of the Selected Reserve. 2. 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 transfer of education benefits under the TEB provisions. The applicant was neither on active duty nor in the Selected Reserve when the program was implemented. 3. By law, he is ineligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his family member(s). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001068 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001068 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2