BOARD DATE:  8 January 2013

		DOCKET NUMBER:  AR20120011877 


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 correction of his military records to allow transferability of his Post 9/11 GI Bill benefits to his dependents. 

2.  The applicant states that he was not informed of the requirement to transfer the benefits to his dependents while still on active duty.
 
3.  The applicant provides copies of his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 9 July 2004 separation orders

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 honorably discharged, due to disability, as a sergeant/E-5 effective 1 October 2004.  

3.  In the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Career Systems Division, Office of the Deputy Chief of Staff, G-1, Headquarters Department of the Army, Washington, DC.  The advisory official recommended disapproval of the applicant's request.  The applicant is not authorized to transfer his education benefits because he was not a member of the service on or after 1 August 2009, which is a requirement established by law. 

4.  On 2 October 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  No response was received.

5.  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 on the administration of the program.  

6.  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 of the U.S. Army on or after 1 August 2009.  

DISCUSSION AND CONCLUSIONS:

1.  The Post 9/11 GI Bill program was not in effect during his period of military service.  His last day of active duty was 1 October 2004.  The law states only those individual who served on active duty on or after 1 August 2009 are eligible to transfer education benefits under the provisions of the Post 9-11 GI Bill.  

2.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110020816



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ABCMR Record of Proceedings (cont)                                         AR20120011877



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