IN THE CASE OF: BOARD DATE: 14 May 2015 DOCKET NUMBER: AR20140011846 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 educational benefits to his dependent children under the Post-9/11 GI Bill transferability provision. 2. The applicant states he was on transition leave when the Post-9/11 GI Bill transferability provision became effective. He was not aware of the effective date of 1 August 2009 until 3 years later when he met with the education counselor at Fort Sill, OK. When he out-processed from active duty in connection with his retirement, the education counselor at Fort Hood, TX, did not have a firm effective date for the Post-9/11 GI Bill transferability provision. 3. The applicant provides correspondence from the U.S. Army Human Resources Command Education Incentives Branch and a military pay transaction report. 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 retired effective 31 August 2009 after completing over 20 years of active service. 3. He provided a military pay transaction report showing he departed his unit on transition leave effective 7 July 2009. 4. He also provided correspondence from the U.S. Army Human Resources Command Education Incentives Branch stating he could seek relief through application to the ABCMR since his retirement date was within the first 90 days of implementation of the Post-9/11 GI Bill transferability provision. The correspondence states only those veterans who actually retired or were on documented transition leave with an effective separation date from 2 August 2009 to 1 November 2009 would be favorably considered for transferability of Post-9/11 GI Bill benefits. 5. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible individual is any member of the Armed Forces on or after 1 August 2009 who, at the time of approval of the individual's 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 duty or 20 qualifying years of Reserve Component service. 6. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 7. DOD, the Army, and the Department of Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of his records to show he applied for and the Army approved transfer of his benefits under the Post-9/11 GI Bill to his eligible dependents prior to his retirement was carefully considered and found to have merit. 2. The Post-9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level. As confirmed in the U.S. Army Human Resources Command correspondence, specific guidance pertaining to the requirement to apply for the benefits prior to leaving military service was not fully available to members who transitioned within the first 90 days after implementation of the program on 1 August 2009. 3. The evidence of record confirms the applicant retired on 31 August 2009 within 90 days of implementation of the program. In view of the fact that transfer application procedures were not fully implemented at the time he retired, it would serve the interests of equity and justice to correct his records to show he applied to transfer his educational benefits to his eligible dependents under the Post-9/11 GI Bill transferability provision upon program implementation while he was still serving on active duty. BOARD VOTE: ____X___ ____X___ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he applied to transfer his educational benefits to his eligible dependents under the Post-9/11 GI Bill transferability provision upon program implementation while he was still serving on active duty and the Army approved his application in a timely manner. _______ _ 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. ABCMR Record of Proceedings (cont) AR20140011846 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140011846 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1