IN THE CASE OF:	  

		BOARD DATE:	  14 January 2016

		DOCKET NUMBER:  AR20150006508  


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, in effect, an exception to policy to transfer educational benefits to his daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states there is no error.  He did not use the GI Bill benefits for himself and would like to transfer those benefits to his biological daughter.  

3.  The applicant does not provide any additional evidence. 

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 born in September 1963.  

3.  He enlisted in the Mississippi Army National Guard (MSARNG) on 17 July 1984.  He served through multiple reenlistments or extensions in a variety of assignments.  He attained the rank/grade of sergeant first class/E-7. 

4.  On 3 August 2004, the MSSARNG issued him a Notification of Eligibility for Retired Pay at age 60 (20-Year Letter). 

5.  He was discharged from the ARNG on 31 August 2006 and transferred to the Retired Reserve.  His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed over 22 years of ARNG service. 

6.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states 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.

7.  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.  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.

DISCUSSION AND CONCLUSIONS:

The applicant served in the ARNG from 17 July 1984 to 31 August 2006.  The law requires a member to be on active duty or in the Selected Reserve on or after 1 August 2009 and at the time of the request for transfer.  The applicant was not on active duty nor in the Selected Reserve at the time this program was implemented.  Therefore, he is not eligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his daughter or family members.

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)                                         AR20150006508



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ABCMR Record of Proceedings (cont)                                         AR20150006508



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