IN THE CASE OF:	  

		BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120017727 


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 Montgomery GI Bill (MGIB) educational benefits to his children under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to retiring from active duty.

2.  The applicant states that during the period of his transition processing, he was not fully informed of the process and procedures for Soldiers to transfer their educational benefits.  The program went into effect on 1 August 2009 while he was on transition leave.

3.  The applicant provides a copy of his 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.  The applicant enlisted in the Regular Army on 14 September 1987.  He was awarded military occupational specialty 11B (Infantryman).  He was promoted to sergeant first class (SFC)/pay grade E-7 on 1 October 2002.

3.  Orders 359-0022, issued by the U.S. Army Installation Management Command, Fort Lewis, WA, dated 24 December 2008, authorized the applicant to travel from Guam to Hawaii for separation processing with a will proceed date of 29 June 2009 and a reporting date to Hawaii on 30 June 2009.

4.  Orders 159-0004, issued by the same command, dated 8 June 2009, amended Orders 359-0022 to include his family members as:

	a.  Elizabeth A. P---- (spouse);

	b.  Leon A. P---- III (son, born in August 1996); and

	c.  Eliza J. P---- (daughter, born in January 1998).

5.  On 30 September 2009, the applicant retired by reason of sufficient service for retirement and he was placed on the Retired list effective 1 October 2009.  He completed 22 years and 17 days of creditable active service.

6.  There is no evidence that the applicant completed a request to transfer educational benefits to any of his family members before leaving military service.

7.  There is no evidence that the applicant's family members made a previous claim to the Department of Veterans Affairs (VA) for educational benefits.

8.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members.  The Public Law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.

	a.  An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least:

		(1)  6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; or

		(2)  the years of service as determined in Army regulations and established by the Secretary of the Army.

	b.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows:

		(1)  to the individual's spouse;

		(2)  to one or more of the individual's children; or

		(3)  to a combination of the individuals identified above.

	c.  To satisfy this legally-imposed constraint, a child must be an eligible family member at the time of transfer.  To be considered an eligible family member, a child must be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and be eligible for DEERS benefits.

		(1)  Children lose eligible family member status upon turning age 21 or at marriage;

		(2)  Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried, as verified by DEERS; and

		(3)  Family member children can use transferred benefits up to age 26.

	d.  Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.

9.  The Department of the Army, Department of Defense, and the VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post-9/11 GI Bill 


and subsequent transfer of entitlements was published well in advance of the implementation date of 1 August 2009.  However, many Soldiers who left service during the first 90 days of the program were not aware of the requirement to transfer their benefits prior to leaving military service.

10.  The VA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was fully eligible to transfer his educational benefits under the Post-9/11 GI Bill transferability program prior to retirement.

	a.  He had at least 6 years of eligible service in order to transfer educational benefits to his spouse and at least 10 years of eligible service to transfer educational benefits to eligible children.  He had more than 20 years of service upon his retirement.

	b.  He was serving on active duty on 1 August 2009 and his last day of active duty service was 30 September 2009, which was within 90 days after the program's implementation.

2.  He was eligible to transfer his educational benefits to his three family members who were enrolled in DEERS.

3.  Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer Post-9/11 GI Bill benefits prior to leaving military service.

4.  The applicant began his transition leave on or about 30 June 2009 and he retired from active duty on 30 September 2009 which was within 90 days of the program's implementation date.  As such, he may not have been aware of the requirement to transfer his benefits prior to leaving military service.

5.  Therefore, it would be appropriate to correct his military record to show he elected to transfer benefits under the Post-9/11 GI Bill transferability program to his eligible family members prior to his retirement date.


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 correcting his military record to show he filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his family members prior to his retirement, provided all other program 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)                                         AR20120017727



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ABCMR Record of Proceedings (cont)                                         AR20120017727



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