BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160003119 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: 12 September 2017 DOCKET NUMBER: AR20160003119 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: 12 September 2017 DOCKET NUMBER: AR20160003119 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 correction of his records to show he elected to transfer his Post-9/11 GI Bill education benefits to his two dependent children. He also requests personal appearance before the Board. 2. The applicant states that he retired from the U.S. Army on 8 February 2005. He was unaware of the provisions to transfer educational benefits (TEB) because rules and regulations did not exist until August 2009. 3. The applicant provides a VA Form 21-4138 (Veterans Affairs (VA) - Statement in Support of Claim) and 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. The applicant enlisted the U.S. Army Reserve on 4 December 1998 for a period of 8years. He further enlisted in the Regular Army (RA) for a period of 6 years and entered active duty on 19 May 1999. He attained the rank of specialist/pay grade E-4. 3. Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, Orders 321-0006, dated 16 November 2004, as amended by Orders 256-0605, dated 12 September 2016, discharged the applicant from the RA, effective 8 February 2005, based on disability (20 percent) with severance pay. 4. The applicant's DD Form 214 shows he entered active duty this period on 19 May 1999 and he was honorably discharged from the RA on 8 February 2005 based on disability with severance pay. He had completed 5 years, 8 months, and 20 days of total active service. 5. In the processing of his case, an advisory opinion was obtained from the Chief, Army Education Incentives Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY. a. The advisory official recommends denial of the applicant's request to transfer Post-9/11 GI Bill education benefits to his dependents. b. Public Law 110-252 (Supplemental Appropriations Act, 2008) limits eligibility to transfer unused benefits to those members of the armed forces who served on active duty or as a member of the Selected Reserve on or after 1 August 2009. c. The applicant served honorably after 10 September 2001 for at least 90 days, so he is eligible for the Post-9/11 GI Bill (for his personal usage until 7 February 2020). However, he is ineligible to transfer his education benefits because he was separated before 1 August 2009; the implementation date of the Post-9/11 GI Bill TEB incentive. 6. On 11 April 2017, the applicant was provided a copy of the HRC advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members. This public law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members. a. The law identified the qualifying Title 10 and Title 32 duty that a service member must have performed on or after 11 September 2001 to gain eligibility for the Post-9/11 GI Bill. b. The Post-9/11 GI Bill TEB Program was implemented effective 1 August 2009. Soldiers were eligible to apply for TEB beginning on 28 June 2009 with an effective date of 1 August 2009. c. Eligibility to transfer unused benefits is limited to those members of the U.S. Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, 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 was honorably discharged from military service on 8 February 2005. 3. The law provides that a service member must have been serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 in order to be eligible to transfer unused benefits to eligible family members. 4. The applicant was not serving on active duty nor was he a member of the Selected Reserve on or after 1 August 2009. Thus he is not eligible for the Post-9/11 GI Bill transferability option. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003119 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003119 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2