IN THE CASE OF:	  

		BOARD DATE:  11 July 2013

		DOCKET NUMBER:  AR20120022355 


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, an exception to policy to transfer half of his remaining Post-9/11 GI Bill educational benefits to his son.

2.  The applicant states:

* he was on leave on 1 August 2009 and cleared Fort Sill, OK, on 18 August 2009, with an approved retirement date of 1 December 2009
* the Post/9-11 GI Bill was changing constantly and he did not know about the service-remaining requirements until after he retired and submitted paperwork to the Department of Veterans Affairs
* his son is a junior in high school and he has scored well enough on aptitude tests to get into college

3.  The applicant provides 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 U.S. Army Reserve (USAR) on 5 February 1988. He entered active duty on 24 June 1990 in an Active Guard Reserve (AGR) status and he served through multiple extensions or reenlistments.  

3.  A DA Form 4187 (Personnel Action), dated 11 March 2009, shows the applicant's request for voluntary retirement was recommended for approval.  His desired date of retirement was 1 December 2009.  He requested 82 days of leave and 20 days of permissive temporary duty (TDY). 

4.  A DA Form 2339 (Application for Voluntary Retirement), dated 6 April 2009, shows in item 31 (Remarks) the applicant was approved for:

* 20 days permissive TDY from 21 August 2009 to 9 September 2009
* 82 days of transitional leave from 10 September 2009 to 30 November 2009

5.  Orders C-04-907117, dated 7 April 2009, issued by the U.S. Army Human Resources Command, show the applicant was attached to Fort Sill, OK, for separation.  His report date was 20 August 2009 and his scheduled date of separation was 30 November 2009.

6.  On 30 November 2009, he retired by reason of sufficient service for retirement and he was placed on the Retired List on 1 December 2009.  He was credited with 20 years, 3 months, and 16 days of creditable active service.

7.  DOD Directive-Type Memorandum (DTM) 09-003, dated 22 June 2009, established the criteria for eligibility to transfer unused educational benefits to eligible family members.  

	a.  Eligible individuals include a member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of their request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill, and is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013 and agrees to serve any specified additional period of service.  For those individuals who had an approved retirement date after 
1 August 2009 and before 1 July 2010, no additional service was required.  

	b.  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.

	c.  An individual approved to transfer entitlement to educational assistance may transfer such entitlement to the individual's family member(s) only while serving as a member of the Armed Forces.

	d.  A family member must be enrolled in the Defense Enrollment Eligibility Reporting System and be eligible for benefits at the time of transfer to receive transferred educational benefits.

	e.  An individual may add new dependents, modify the number of months of the transferred entitlement for existing dependents, or revoke transfer of entitlement while serving in the Armed Forces.

8.  The Army, Department of Defense (DOD), and the Department of Veterans Affairs (VA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits.  Although significant measures were taken to disseminate the information to all Soldiers during the initial phase of the program, many Soldiers who left service during the first 90 days of the program were not fully aware of the requirements to transfer prior to leaving the military.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was fully eligible to transfer his educational benefits under the TEB prior to retirement, but he did not do so.  The program was implemented 1 August 2009.  On 21 August 2009, within the first 90 days of the program, he began permissive TDY and transitional leave and remained in this status until his retirement on 30 November 2009.  During this period, he would not have had ready access to information on the process for transferring his benefits

2.  In view of the available evidence, it would be appropriate to correct his record to show he submitted a timely request to transfer his Post-9/11 GI Bill benefits to his eligible family members prior to his retirement.







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 eligible 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)                                         AR20120022355





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ABCMR Record of Proceedings (cont)                                         AR20120022355



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