ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 February 2019 DOCKET NUMBER: AR20160015896 APPLICANT REQUESTS: an exception to policy to transfer educational benefits to her family members 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) * DD Form 293 (Application for the Review of Discharge) * Statement in Support of Claim * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 she retired in February 2005. The program did not exist until August 2009. There was no rules or guidelines in place before August 2009. 3. Review of the applicant's service record shows: a. She enlisted in the Regular Army on 27 January 1981. b. She retired on 31 January 2005. Her DD Form 214 shows she completed 24 years and 4 days of active service. 4. An advisory opinion was received from the U.S. Army Human Resources Command on 27 August 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. 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 31 January 2005 which is before 1 August 2009, the implementation date of the Post 9/11 GI Bill. Relief 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 31 January 2005; therefore, she is eligible to use the Post 9/11 GI Bill for her personal use until 31 January 2020, which is 15 years after her last release from active duty. 5. The applicant was provided with a copy of this advisory opinion to give her an opportunity to submit a rebuttal. She 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 was separated in 2005. BOARD DISCUSSION: 1. The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance. The Board finds the advisory opinion received from the U.S. Army Human Resources Command on 27 August 2018 compelling and concurs with the findings. 2. “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 31 January 2005 which is before 1 August 2009, the implementation date of the Post 9/11 GI Bill per Public Law 110-252. Relief 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 31 January 2005; therefore, she is eligible to use the Post 9/11 GI Bill for her personal use until 31 January 2020, which is 15 years after her last release from active duty.” The Board must comply with existing law; it does not have the authority to change the law. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X 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. ___________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. ADMINISTRATIVE NOTE(S): Not Applicable 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) AR20160015896 4 1