IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150010707 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 IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150010707 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. IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150010707 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 his education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his children. 2. The applicant states he retired on 1 July 2009 and should be grandfathered into the Post 9/11 GI Bill TEB so he can transfer the benefits to his children. Because the law came into effect on 1 August 2009, he is not eligible to transfer his benefits; however, he is requesting to be allowed to do so. 3. The applicant provides two 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. With prior service in the Regular Army, the applicant was appointed as a second lieutenant Reserve officer in the U.S. Army Reserve (USAR) on 7 December 1978. On September 1982, he was promoted as a Reserve officer to the rank of captain (CPT). On 16 October 1988, he was released from the USAR. 3. On 17 October 1988, he was appointed as a CPT in the Army National Guard (ARNG). On 22 February 1995, he was promoted as a Reserve officer to the rank of lieutenant colonel in the ARNG. 4. On 7 February 2000, he was released from the ARNG and he was transferred to the USAR. On 30 March 2000, he was promoted as a Reserve officer to the rank of colonel (COL) in the USAR. 5. Orders 09-149-00010, dated 25 May 2009, issued by Headquarters, Military Intelligence Readiness Command, Fort Belvoir, VA, released him from his USAR unit and transferred him to the Retired Reserves in the rank of COL effective 1 July 2009, by reason of maximum years of service. REFERENCES: 1. Public Law 110-552 established legal limitations on the transferability of unused Post-9/11 GI Bill education benefits and limited eligibility to members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 2. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible family member 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 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. 3. A member of the Armed Forces is eligible to transfer education benefits to family members if they: a. have eligible family members enrolled in the Defense Enrollment Eligibility Reporting System (DEERS). Children lose eligible family member status upon turning 21 years of age, or at marriage. Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried; b. initially request the transfer through the DOD TEB online database. This database was operational on 29 June 2009. Once approved in the TEB database, the information is automatically relayed to the Department of Veterans Affairs (VA). Once the benefits are transferred, children may use the benefits up to the age of 26. 4. Public Law 110-252, section 3020, 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. A Soldier must be serving on active duty or as a member of the Selected Reserve at the time of transfer of education benefits to his/her dependent. DISCUSSION: The evidence of record confirms the applicant was released from the USAR and assigned to the Retired Reserve on 1 July 2009. The requirement to transfer education benefits under TEB while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board. There were no provisions in the law to make the eligibility to transfer benefits retroactive nor did it allow for a ?grandfather clause.? As he was not serving in the Selected Reserve on 1 August 2009, he does not meet the statutory criteria to transfer the benefits to his children. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010707 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010707 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2