IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110023150 


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 transferred his Post 9/11 GI Bill benefits to his dependents.

2.  The applicant states:

* he is a veteran of both the Desert Storm and Operation Iraqi Freedom wars
* he has been approved to have his certificate of eligibility for 100 percent of the benefits payable under the Post 9/11 GI Bill program
* he attempted to transfer his Post 9/11 GI Bill benefits to his daughter, but was informed that he could not
* he was informed by the Army Education Branch that since he did not transfer benefits to his dependents before he retired in January 2005, he was not eligible to transfer the benefits without the ABCMR's approval
* the Post 9/11 GI Bill did not exist on 31 January 2005 when he retired and he was not made aware of any options to transfer any benefits to his dependents at the time
* the transfer of these benefits are greatly needed in providing the best possible education for his children 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) letter, dated 2 November 2011


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.  On 31 January 2005, the applicant retired after completing 22 years and 12 days of credible active service. 

3.  The applicant provides a copy of his Certificate of Eligibility from the VA which explains his benefits for an approved program of education or training under the Post 9/11 GI Bill. 

4.  During the processing of this case, on 17 January 2012, an advisory opinion was obtained from the Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who recommended denial of the applicant's request.  He states, in part, a Soldier must be currently on active duty or a member the Selected Reserves at the time of transfer of education benefits to his or her dependent (on or after 1 August 2009).  The applicant's last day in the Service was 31 January 2005.  He is not eligible to transfer his Post 9/11 GI Bill benefits.

5.  On 19 January 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

6.  On 22 June 2009, Department of Defense (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 for 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 service.)

7.  The policy further states the Secretaries of the Military Departments will provide counseling on the benefits under the Post 9/11 GI Bill to active duty participants and members of the Reserve Components with qualifying active duty service prior to separation or release from active duty and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show he transferred his Post 9/11 Education Benefits to his dependents was carefully considered.

2.  The evidence of record shows the applicant was retired prior to implementation of the program authorizing transfer of Post 9/11 GI Bill benefits.  Therefore, he is not eligible to transfer his Post 9/11 GI Bill benefits.

3.  In view of the above, there is no basis to grant the requested relief.

4.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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 that 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)                                         AR20110023150



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110023150



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1