BOARD DATE:	  23 May 2012

		DOCKET NUMBER:  AR20110023513 


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 elected transfer of her educational benefits to her dependents under the Post-9/11 GI Bill transferability program.

2.  The applicant states:

* When she retired from the military they were not offering the GI Bill to family members
* Since she has retired she sees so many Soldiers and their family members using the GI Bill
* She didn't know that one day the GI Bill would be given to family members

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  After completing 20 years, 8 months, and 10 days of creditable active service, the applicant retired from the Regular Army on 30 April 2006 in the rank/grade of sergeant first class.

3.  During the processing of this case, on 20 July 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Chief, Enlisted Professional Development Branch, who states, in summary:

   a.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  The law 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.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent (on or after 1 August 2009).  The applicant's last day in military service was 
30 April 2006.  She is not eligible to transfer her Post-9/11 GI Bill benefits.

	c.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse or at least 10 years of eligible service to transfer to eligible children.  She had more than 20 years of service upon her retirement but she was not eligible to transfer benefits to her dependents because the law requires Soldiers to be in the service on or after 1 August 2009.

	d.  A Soldier may only transfer benefits to eligible dependents.  The Transfer of Education (TEB) online database shows she had no eligible dependents to transfer the benefit to because she was not a member of the service on or after 
1 August 2009; this incentive was not available to her.

	e.  A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  If the applicant had been in the service on 1 August 2009 she would not have incurred an additional service obligation, but she was not eligible because she left military service prior to 1 August 2009.

	f.  A Soldier must have no adverse action flag and have an honorable discharge to transfer benefits.  There is no evidence of an adverse action in the applicant's record.  She received an honorable discharge.
	g.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program.  Her last day in the service was 30 April 2006 which was before the program's implementation.

	h.  A Soldier must initially request to transfer benefits on the Department of Defense (DOD) TEB online database.  The TEB online database was operational on 29 June 2009.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for Department of Veterans Affairs (VA) access.  The respective dependent must then submit an application for VA educational benefits to request to use the benefits.  She did not take the required steps to transfer benefits because the program was not yet available.

	i.  Changes to the amount of months allocated to dependents can be made at anytime, to include once they leave military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits.  The TEB website shows no action was taken by the applicant to transfer any benefit.

4.  The advisory official does not recommend administrative relief for the applicant because she was not a member of the service on or after 1 August 2009 which is a requirement established by law.

5.  On 2 February 2012, the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  She 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 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, since she retired on 30 April 2006 prior to the implementation of the Post-9/11 GI Bill transferability program, she is not eligible to transfer benefits under the program to her dependents.

2.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices she made in service to our Nation.  The applicant and all Americans should be justifiably proud of her 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)                                         AR20110023513





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ABCMR Record of Proceedings (cont)                                         AR20110023513



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