IN THE CASE OF:	  

		BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100013608 


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 military records to show he transferred his Montgomery GI Bill (MGIB) benefits to his children prior to retirement.

2.  The applicant states he was not informed in 2007 when he retired that he needed to transfer his MGIB benefits prior to retirement.  His understands that the ability to transfer MGIB benefits did not come into effect for the U.S. Army until August 2009, unlike the Air Force and Navy, where this benefit was implemented earlier.  He has a daughter in college and would like to transfer his MGIB benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a memorandum from a legal assistance attorney at Fort Carson, Colorado.

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's DD Form 214 shows:

	a.  he served in the Regular Army for over 21 years,

	b.  he attained the rank of chief warrant officer three, and

	c.  he retired due to sufficient length of service on 31 January 2007.

3.  The memorandum provided by the applicant states:

	a.  the reason for this request is based on a fundamental notion of fairness,

	b.  the applicant had a highly decorated and honorable military career with no desire to return to school,

	c.  the applicant left the U.S. Army in 2007 when the transfer of MGIB benefits was still a relatively new law and administrative procedures had not been implemented,

	d.  the applicant would have certainly undertaken steps to ensure his dependents could use his MGIB benefit had the U.S. Army done a better job of educating its service members,

	e.  the applicant has already paid into the MGIB; therefore, denying him the opportunity to transfer his MGIB entitlement to his children would be an unfair windfall for the government,

	f.  no legitimate reason exists to deny the applicant the benefit of transferring his MGIB, and

	g.  no additional costs would accrue to the government by allowing the applicant's children to use his MGIB benefit.

4.  In the processing of this case, an advisory opinion was obtained from the Chief, Enlisted Professional Development Branch, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army.  The opinion stated:

	a.  that Public Law 110-252, section 3319(b), requires the military member to be on active duty or in the Selected Reserve to be authorized to transfer MGIB benefits;

	b.  that the Army and Department of Defense (DOD) policy require a Soldier to be on active duty or a member of the Selected Reserve in order to transfer MGIB benefits is based on Public Law;

	c.  that the applicant was ineligible to transfer MGIB benefits because he was no longer on active duty;

	d.  that the Department of the Army does not have the legal authority to grant an exception to policy allowing those who retired or were otherwise separated from the Army to transfer MGIB benefits;

	f.  that special Congressional action would be required to change or amend the current legislation in order to change the applicant's eligibility status; and

	f.  that the applicant's request should be denied.

5.  On 2 November 2010, a copy of the advisory opinion was sent to the applicant for his information and opportunity to rebut.  No response was received.

6.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused education 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 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 from 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.

7.  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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

8.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  The policy states that 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 will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

9.  DOD, VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet two criteria to qualify to transfer benefits to an eligible dependent:  (a) be a Soldier on active duty or a member of the Selected Reserve at the time of the transfer (provided Soldier does not have an adverse action flag) and (b) have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of request, unless retirement eligible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he transferred his MGIB benefits to his children prior to retirement.

2.  DOD established the criteria for the Post-9/11 GI Bill on 22 June 2009.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.

3.  The policy states that 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 will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.

4.  The applicant retired from the Regular Army on 31 January 2007; therefore, he is not eligible to transfer his MGIB benefits under the provisions of this law.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  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.

ABCMR Record of Proceedings (cont)                                         AR20100013608



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ABCMR Record of Proceedings (cont)                                         AR20100013608



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