BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150015875 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 BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150015875 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. BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150015875 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 under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill. He also requests a personal hearing. 2. The applicant states according to the document he received, the transferability eligibility started on 29 June 2009. This was not presented to him during his transition from the Army. He retired on 31 July 2009. He believes he was unable to transfer the benefits because the Army did not give him all the information. 3. The applicant provides: * Post- 9/11 GI Bill Transferability Information Paper * 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. With prior service, the applicant enlisted in the Regular Army on 18 April 1990. He served in a variety of stateside and/or overseas assignments and attained the rank/grade of staff sergeant (SSG)/pay grade E-6. 3. He retired on 31 July 2009 and was placed on the Retired List in the rank/grade of SSG/E-6 on 1 August 2009. He completed 20 years of active federal service. 4. He provides a document pertaining to the Post 9/11 GI Bill outlining the program and application procedures. 5. The Board requested the U.S. Army Human Resources Command review his eligibility. As a result, an official at the Army Education Incentives Branch rendered an advisory opinion on 10 August 2016. The official recommended disapproval of the applicant's request and stated that Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Further, section 3020 of 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 on or after 1 August 2009. The applicant served honorably after 10 September 2001 for at least 90 days, so he is eligible for the Post 9/11 GI Bill; however, he is ineligible to transfer education benefits because he retired before 1 August 2009, the implementation date of the Post 9/11 GI Bill. Also, as he was not a Retiree Recall after 1 August 2009 and does not have eligible service after 1 August 2009, he is ineligible to transfer education benefits. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to provide a rebuttal and/or submit a response. He did not respond. REFERENCES: 1. On 22 June 2009, Department of Defense established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible 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: 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 (i.e., qualifying service)) 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. 2. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that 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 because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009. 3. Army Regulation 15-185 (ABCMR) states ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 2. The applicant served on active duty from 18 April 1990 to 31 July 2009. 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. He was and remains ineligible to transfer his educational 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 the law are not within the purview of this Board. There is neither an error nor an injustice in his case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015875 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015875 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2