ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: 20160014694 APPLICANT REQUESTS: an exception to policy to transfer educational benefits to his family member(s) under the transfer of educational benefits (TEB) provision of the Post- 9/11 GI Bill. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his retirement briefing occurred at a remote location. He was not told that he had to be on active duty to transfer the education benefits. His daughter is an honor student who has a passion to teach children with special needs. 3. Review of the applicant's service record shows: a. He enlisted in the Regular Army on 1 March 1984. b. He retired on 30 June 2009. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed over 25 years of honorable active service. 4. An advisory opinion was received from the U.S. Army Human Resources Command on 5 June 2018 in the processing of this case. An advisory official recommended disapproval of this request to transfer Post 9/11 GI Bill education benefits and stated: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Further, § 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 and have served at least 6 years and committed to an additional 4 years.. b. 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 30 June 2009 which is before 1 August 2009, the implementation date of the Post 9/11 GI Bill. Also, he did not return to serving on active duty or in the Selected Reserve on or after 1 August 2009, so he is ineligible to transfer education benefits. c. HRC does not recommend administrative relief for the applicant because he did not make himself eligible to transfer education benefits by serving on active duty or in the Selected Reserve on or after 1 August 2009. Although TEB is unavailable to him, his military service may make his dependents eligible for other types of assistance. He is eligible to use the Post 9/11 GI Bill for his personal use until 30 June 2025, which is 15 years after his last release from active duty for at least a 90-day Post 9/11 GI Bill qualifying period. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 6. 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 retired in 1996. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the finding in the HRC advisory opinion that the applicant was ineligible to transfer education benefits because he retired 30 June 2009 which is before the implementation date of the Post 9/11 GI Bill and he did not return to serving on active duty or in the Selected Reserve on or after 1 August 2009, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Public Law 110-252 limits the eligibility to transfer unused education benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve on or after 1 August 2009. 3. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states 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 may transfer education benefits to eligible dependents. ABCMR Record of Proceedings (cont) 20160014694 2 1