IN THE CASE OF:	  

		BOARD DATE:	    3 April 2012

		DOCKET NUMBER:  AR20110019078 


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, in effect, correction of her records to show she applied for the Post-9/11 GI Bill Transferability Program to transfer her educational benefits to her dependent before she retired from active duty on 31 August 2009.
 
2.  The applicant states she was not properly advised on the transfer of GI Bill educational benefits to her family before her retirement.  She states the Education Center and Retirement Services Office did not have all of the answers when she started clearing on 20 May 2009.  She continues by stating she began permissive temporary duty on 5 June and it ran concurrently with her terminal leave which ended on 31 August 2009.  She also states she attempted to make the transfer after retirement but with no luck.

3.  The applicant provides copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 137-2-R (Installation Clearance Record), DA Form 31 (Request and Authority for Leave), and DD Form 1172 (Application for Uniformed Services Identification Card – Defense Enrollment Eligibility Reporting System (DEERS) Enrollment) with attached forms, and her marriage certificate.

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 enlisted in the Regular Army on 3 August 1989.  She completed her training and remained on active duty through a series of continuous reenlistments.  She was promoted to pay grade E-7 on 1 October 2006.

3.  On 31 August 2009, she was honorably retired and placed on the Retired List effective 1  September 2009.  She completed 20 years and 28 days of active service.  Her records show she cleared the education center on 4 June 2009.

4.  During the processing of this case an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who stated the applicant was not eligible to transfer benefits under the Post-9/11 GI Bill to her dependents as she was separated from military service prior to transferring her benefits.  It further states the Army, Department of Defense, and Department of Veterans Affairs (VA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues and that information on the program and subsequent transfer of entitlements were published well in advance of the implementation date of 1 August 2009.  However, because the applicant was separated within 90 days of the implementation of the program it was recommended that her request be approved because many Soldiers who left military service during the first 90 days of the program were not fully aware of the requirement to transfer prior to leaving military service.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

5.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public 
Law 110-252, House of Representatives, 2642.  In July of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

6.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute the transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

7.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning on 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732:

	a.  service members eligible for retirement on 1 August 2009 – no additional service required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

	d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;

	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and

	f.  active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that her record be corrected to show she applied for and the Army approved transferring her educational benefits under the Post-9/11 GI Bill to her dependents prior to her retirement from active duty on 31 August 2009 has been carefully considered and is 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.

3.  Although the applicant did not make her application before retirement, it is reasonable to presume that she was not informed that she had to make her transfer of educational benefits while she was still on active duty, given the close proximity of the applicant's retirement on 31 August 2009 to the effective date of the Post-9/11 GI Bill (1 August 2009) and the fact that she was undergoing transition retirement processing prior to the implementation date.  This is especially true given she was on transition leave prior to the implementation date and her retirement.

4.  Given the timing of the implementation of the program and the applicant's retirement, it is also reasonable to presume that she very well could have fallen through the cracks and was not notified – and it is not reasonable that she would not have enrolled while she was on active duty if she had known since she had eligible dependents and a need for the benefits.

5.  Given the circumstances in this case, it would serve the interest of equity to correct her record to reflect she applied to transfer her educational benefits under the Post-9/11 GI Bill transferability provision upon implementation of the provision.

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 the applicant filed her application and the Army approved her request to transfer Post-9/11 GI Bill educational benefits to her dependents prior to her retirement, provided all other eligibility criteria are met.



      __________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)                                         AR20110019078



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ABCMR Record of Proceedings (cont)                                         AR20110019078



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