IN THE CASE OF: BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160004309 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: 14 November 2017 DOCKET NUMBER: AR20160004309 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: 14 November 2017 DOCKET NUMBER: AR20160004309 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, in effect, correction of her records to show she is authorized to transfer her unused education benefits to her dependent under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states, in effect, that she would like to transfer her unused education benefits to her dependent. The TEB did not become law until August 2009 and she retired from the Army in October 2007. 3. The applicant provides a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) and a VA letter. 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 in the Regular Army on 30 May 1985. She served through multiple periods of reenlistments or extension, in various positions of increased responsibility, and attained the rank/grade of sergeant first class (SFC)/E-7. 3. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was honorably retired on 31 October 2007 after completing 22 years, 5 months, and 1 day of net active service. 4. The applicant provides: a. A VA Form 21-4138, dated 16 February 2016, which shows she requesting an appeal of a 9 February 2016 letter denying the transfer of her education benefits to her dependent. b. A VA letter, dated 9 February 2016, which denied her dependent the claim of benefits under the TEB provisions of the GI Bill. 5. In the processing of this case, on 26 June 2017, an advisory opinion was obtained from the Chief, Army Education Incentives Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY. This advisory official recommended disapproval of the applicant's request to transfer her unused Post-9/11 GI Bill education benefits, noting: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Section 3020, 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. b. The applicant served honorably after 10 September 2001 for at least 90 days, so she is eligible for the Post-9/11 GI Bill; however, she is ineligible to transfer education benefits because she retired before 1 August 2009, the implementation date of the Post-9/11 GI Bill. Also, she was not a Retiree Recall after 1 August 2009 and does not have eligible service after 1 August 2009, so she is ineligible to transfer education benefits. c. We do not recommend administrative relief for applicant because she did not make herself eligible to transfer education benefits by serving on active duty or in the Selected Reserve after 1 August 2009. Again, she is eligible to personally use the Post-9/11 GI Bill until 31 October 2022, which is 15 years after her last release from active duty. 6. The applicant was provided a copy of the advisory opinion on 6 September 2017, for information and to allow her the opportunity to submit comments or a rebuttal. The applicant submitted a one-page typed letter, on or about 11 September 2017, wherein she stated, in effect, her disappointment in the decision. She further noted that she didn't have any more evidence or documents to submit. REFERENCES: 1. Public Law 110-252, as amended by Public Law 111-377, identifies the qualifications to receive the Post-9/11 GI Bill, one of which is that the service member must have performed active service on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill. Public Law 110-252 establishes legal requirements on the transferability of 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. 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 limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her 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) 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 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 service or 20 qualifying years of reserve service. DISCUSSION: 1. Public Law 110-252 establishes legal requirements on the transferability of 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 law requires a member to be in an active status at the time he/she requests the transfer. 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 was prior to 1 August 2009. 2. The applicant retired from the Army on 31 October 2007. Accordingly, she was not on active duty or in an active status as a member of the Selected Reserve on 1 August 2009. Therefore, by law, she is not eligible to transfer her education benefits to her family member(s) under the TEB provisions of the Post-9/11 GI Bill. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004309 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004309 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2