BOARD DATE: 13 June 2013
DOCKET NUMBER: AR20120021925
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, transfer of educational benefits to her daughter under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.
2. She states after she received approval to receive her Post-9/11 GI Bill in July 2009, she went on line to the Defense Finance and Accounting Service and made a selection to have her GI Bill transferred to her daughter. She adds she recently found out that her daughter is not entitled to receive her benefits.
3. She provides:
* her DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 August 1996 and 30 September 2009
* her daughter's Consular Report of Birth Abroad
* a Department of Veterans Affairs (VA) letter, dated 13 July 2009
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 22 years, 1 month, and 3 days of creditable active service, the applicant was retired on 30 September 2009 in the rank/grade of chief warrant officer four (CW4)/W-4.
3. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational 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 from 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.
4. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant retired on 30 September 2009, within 90 days of the implementation of the program authorizing transfer of Post-9/11 GI Bill benefits.
2. In view of the available evidence it would be appropriate to correct her record to show she submitted a timely request to transfer her Post-9/11 GI Bill benefits to her daughter prior to her retirement.
BOARD VOTE:
_x____ __x______ ____x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was 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 benefits to her daughter prior to her 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) AR20120021925
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ABCMR Record of Proceedings (cont) AR20120021925
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