IN THE CASE OF: BOARD DATE: 9 February 2016 DOCKET NUMBER: AR20150007029 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 educational benefits to his family members under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states he was transferred to Korea from Fort Knox, KY, in May 2005. He retired from Korea en route to his family at Fort Benning, GA, in May 2006. He started his retirement processing in November 2005 in Korea. He completed retirement processing in January 2006. As he was leaving in May 2006 final out, he along with other retiring Soldiers were told that Korea was under investigation and that they would have to start their retirement process all over once in the States. He was on leave from 19 May 2006 to 31 August 2006. He was told he could not do anything until his leave was done in August. All of his records were still in Korea. He then had to start his Department of Veterans Affairs (VA) disability all over again once his leave ended in August 2006. He then found out that Fort Benning, GA, could not assist him because he retired out of Korea. He was routed to VA in Columbus, GA. Because he did not know what his disability rating was, he was sent through the Tuskegee and Montgomery, AL, offices, and that is when his process started all over again and that took months. He did not need to use GI Bill until now because his daughter is a senior in high school. He found out the transfer of benefits did not occur. 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 retired on 31 August 2006 and he was placed on the retired list in his retired rank/grade of SFC/E-7 on 1 September 2006. He was credited with over 20 years of active service. 4. An advisory opinion was received on 11 September 2015 from the U.S. Army Human Resources Command in the processing of this case. The advisory official recommended disapproval of the applicant's request because he retired before 1 August 2009, the implementation date of this program. 5. The applicant was provided with a copy of this advisory opinion on 21 September 2015 but he did not respond. 6. Public Law 110-252 limits the eligibility to transfer unused Post-9/11 GI Bill benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve. 7. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational 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 may transfer education benefits to eligible dependents. DISCUSSION AND CONCLUSIONS: 1. 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 of Post 9/11 GI Bill education benefits. The applicant retired on 31 August 2006, approximately 3 years before the law became effective. 2. He was neither on active duty nor in the Selected Reserve when the program was implemented. He is not eligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill. 3. The requirements of this program are set in the law and any changes to this law are not within the purview of this Board. There is neither an error nor an injustice in his case. 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) AR20150007029 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007029 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1