IN THE CASE OF: BOARD DATE: 4 January 2019 DOCKET NUMBER: AR20160013374 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 4 January 2019 DOCKET NUMBER: AR20160013374 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests, in effect, correction of her records to show she was authorized to transfer her unused education benefits to her dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states she retired from the U.S. Army Reserve (USAR) in 2009 prior to the August 2009 implementation. At the time she retired, the ruling was not in effect that required the education benefit to be transferred prior to retirement. She has 30 years of combined military service and one year of combat time. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting document(s): * Department of Veterans Affairs (VA) Certificate of Eligibility, dated 27 April 2016 * Self-Authored Statement, dated 15 July 2016 * Congressional Liaison and Inquiry letter, dated 4 April 2017 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 24 July 2008 * Orders 09-299-00035, issued by Headquarters, Army Reserve Medical Command on 26 October 2009 * Memorandum, Subject: Advisory Opinion, dated 17 April 2018 REFERENCES: 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. 2. 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. 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. 3. The Department of Defense established the criteria for eligibility and transfer of unused education benefits to eligible family members on 22 June 2009. The policy limited 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, was eligible for the Post-9/11 GI Bill and: a. had at least 6 years of service in the Armed Forces on the date of election and agreed to serve 4 additional years in the Armed Forces from the date of election; or b. had at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, was precluded by either standard policy (Service or Department of Defense) or statute from committing to four additional years, and agreed to serve for the maximum amount of time allowed by such policy or statute; or c. was or became retirement eligible during the period 1 August 2009 through 1 August 2013. A service member was considered to be retirement eligible if he or she had completed 20 years of active service or 20 qualifying years of Reserve service. DISCUSSION: 1. While 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 North Carolina Army National Guard (NCARNG) on 10 May 1979. She was discharged from the NCARNG on 15 May 1981 and was appointed as a Reserve commissioned officer of the Army on 16 May 1981. 3. The applicant's DD Form 214, for the period ending 24 July 2008, shows she was honorably released from active duty after completing 10 years, 1 month, and 1 day of total prior active service. She was also credited with 18 years and 9 days of total prior inactive service. 4. Orders 09-299-00035, issued by Headquarters, Army Reserve Medical Command, Pinellas Park, FL on 26 October 2009, reassigned the applicant to the Retired Reserve effective 1 July 2009. 5. In the processing of this case, an advisory opinion was obtained on 17 April 2018 from the Incentives Program Manager, U.S. Army Human Resources Command, Fort Knox, KY. This advisory official stated: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. 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. 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 on 1 July 2009 which is before 1 August 2009, the implementation date of the Post 9/11 GI Bill. c. Administrative relief for the applicant is not recommended because she did not make herself eligible to transfer education benefits by serving on active duty or in the Selected Reserve on or after 1 August 2009. Her last release from active duty of at least 90 qualifying days was on 24 July 2008; therefore, she is eligible to use the Post 9/11 GI Bill for her personal use until 24 July 2023, which is 15 years after her last release from active duty. 6. The applicant was provided a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal. However, she did not respond. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013374 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2