IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150015475 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: 31 January 2017 DOCKET NUMBER: AR20150015475 BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation. The applicant and all Americans should be justifiably proud of his service. ___________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: 31 January 2017 DOCKET NUMBER: AR20150015475 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 education benefits to his family member (son) under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states the law concerning transfer of education benefits did not exist at the time of his service and he was unaware of the rules and regulations. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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. Having prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Connecticut Army National Guard (CTARNG) and executed an oath of office on 27 June 1981. He served in a variety of assignments and attained the rank of colonel. 3. In July 1999, the CTARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 4. He reentered active duty on 6 October 2005. He served in various positions and he retired on 30 September 2008, by reason of sufficient active service for retirement. 5. He was placed on the Retired List in the rank of colonel on 1 October 2008. He completed in excess of 23 years of active service. 6. An advisory opinion was received on 12 August 2016 in the processing of the applicant's case. An official at the National Guard Bureau recommended disapproving of the applicant's request. An advisory official stated: a. The applicant requests to transfer his Post 9-11 GI Bill benefits to his dependents. He states he was unaware of the rules and regulations. He completed over 20 years of active service and retired on 30 September 2008. b. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, 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. In order to transfer benefits individuals must be on active duty or in the Selected Reserves on or after 1 August 2009; therefore the Soldier is not eligible to transfer his education benefits under the Post 9/11 GI Bill to his dependents. c. This advisory opinion was coordinated with the Army National Guard Incentives Branch and the CTARNG concurs with this recommendation. 7. The applicant responded to the advisory opinion on 15 September 2016. He stated: a. He voluntarily retired on 30 September 2008 after completing nearly 30 years of service, both active duty and reserve. The law allowing the transfer of Post 9/11 education benefits to a family member was effective in August 2009. Since he was on active duty from the 1980s through the War on Terror, to his retirement 7 years later, he feels that he and a generation of Soldiers who fought the wars caused by that tragic event are being penalized for being honorably discharged prior to the effective date that this law. He chose to retire not knowing that a transfer of education benefits would ever exist the following year. Had he known, he would have gladly remained on active duty rather than face the huge financial burden of higher education years later. Soldiers who served after 2009 have enjoyed an enormous benefit totaling in the tens of thousands of dollars. The same benefit that is denied to career Soldiers prior to 2009. Previous attempts to appeal this ruling through his former chain of command and his legislative body have resulted in the same findings. In fact, he was advised to lobby for a change in the current law. This, he believes is a disservice to a faithful and honorable career. b. He is a disabled combat veteran who commanded a Joint Area Support Group responsible for the safety and security of the U.S Embassy and the Iraqi legislative body in greater Baghdad, Iraq. His unit was the first unit of its kind and received numerous awards and accolades from the government delegations under our charge. He, himself, is the recipient of the Legion of Merit and Bronze Star Medal for those efforts. His DD Form 214 confirms his awards. c. He is not asking for special consideration for a benefit that appears to be an afterthought based on an arbitrary date. He is asking for consideration for a benefit that that is called, Transferability of Post 9/11 GI Bill. The title, as it implies, should apply to all who served honorably following the onset of the ongoing War on Terror. He asks that the Board gives consideration to his request. REFERENCE: 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 for 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 because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009. However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012. DISCUSSION: 1. The applicant served in excess of 23 years of active service and even more in the active and inactive service. He last entered active duty on 6 October 2005 and he retired on 30 September 2008. 2. The law requires a member to be serving 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 neither on active duty nor in the Selected Reserve when the program was implemented. By law, he is ineligible to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill to his family member(s). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015475 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015475 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2