BOARD DATE: 11 April 2013
DOCKET NUMBER: AR20120017377
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 transfer of his Post 9/11 GI Bill benefits to his dependents.
2. The applicant states he was not notified he had to transfer his education benefits before his separation. He states he was retired by reason of disability after serving in Afghanistan.
3. The applicant provides the documents identified in item 9 (In support of this application, I submit the following attached documents) of his application in support of his request.
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 applicants 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 applicants 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 record contains a DD Form 214 (Certificate of Release of Discharge from Active Duty) that shows on 13 August 2009 he was honorably retired, in the grade of sergeant/E-5, by reason of disability, permanent. The
DD Form 214 further shows he completed a total of 18 years and 23 days of active military service.
3. 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.
4. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members. A service member may execute 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.
5. 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; and
e. service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 3 years of additional service is required.
6. In similar cases, the Deputy Chief of Staff, G-1 has opined that although significant measures were taken to disseminate the information to all Soldiers within Army components during the initial phase of the program, many Soldiers who left service or started transition leave during the first 90 days of the program were not fully aware of the requirement to transfer prior to leaving military service.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that his record be corrected to show he applied for and the Army approved transferring his benefits under the Post 9/11 GI Bill to his dependents prior to his retirement from active duty on 13 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. Given the Army has acknowledged that specific guidance on the requirement to apply for the benefit 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 shows the applicant retired on 13 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 the applicant separated, it would serve the interest of equity to correct his record to reflect he applied to transfer his education benefits under the Post 9/11 GI Bill transferability provision upon implementation of the program while still 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 the applicant filed his application and the Army approved his request to transfer Post 9/11 GI Bill benefits to his dependents prior to his 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) AR20120017377
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ABCMR Record of Proceedings (cont) AR20120017377
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