BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160003981 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: 17 October 2017 DOCKET NUMBER: AR20160003981 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: 17 October 2017 DOCKET NUMBER: AR20160003981 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 transfer of educational benefits to her dependent under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill. 2. She states the TEB did not exist at the time she was discharged in 2005. 3. She 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 enlisted in the Regular Army (RA) on 16 November 1999. She served 5 years, 6 months, and 19 days on active duty and she was honorably discharged on 4 June 2005. 3. During the processing of this case, an advisory opinion was obtained from the Chief, Army Education Incentives, U.S. Army Human Resources Command (HRC), on 26 June 2017, who recommends disapproval of the applicant's request. This advisory official states Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, Public Law 110-252 limits eligibility to transfer unused 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. The applicant served honorably after 10 September 2001 for at least 90 days of qualifying Post-9/11 GI Bill; however, she is ineligible to TEB because she separated before 1 August 2009, the implementation date of the Post 9/11 GI Bill and does not have any eligible service after that date. 4.  On 6 September 2017, the advisory opinion was forwarded to the applicant for her acknowledgement. She did not respond. REFERENCES: 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 the transfer provision applies to 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 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. DISCUSSION: The applicant served in the Regular Army from 16 November 1999 to 4 June 2005. 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. The applicant was discharged in June 2005. Therefore, she is not eligible to transfer her education benefits to her dependent under the TEB provision of the Post-9/11 GI Bill. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003981 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003981 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2