IN THE CASE OF:	  

		BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130008214 


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 an exception to policy to transfer educational benefits to his two children under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states that upon his decision to retire in September 2009, he submitted his request for retirement to the Oklahoma Army National Guard (OKARNG) and he asked his unit clerk about transferring his GI Bill benefits to his children due to hearing reports that it was now allowed.  

3.  He goes on to state that he was told that since he had served 20 years, there was nothing he needed to do as he had no service obligation.  He would simply need to enroll his daughters in college at the appropriate time and work with the Department of Veterans Affairs (VA) to transfer his benefits.  

4.  He continues by stating that he began the process in 2012 when his daughter was a senior in high school and was informed that she could not receive his benefits because he did not make the election prior to separation from the service.  He further states that he contacted his branch and was told that he had received bad information in 2009 due to the law being new and no one knew how to implement it until December 2009, after his separation. 

5.  The applicant provides no additional documents with his application.



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 was serving as a first lieutenant in the OKARNG when he received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 1 April 2009.

3.  On 1 November 2009, he was transferred to the Retired Reserve.

4.  The applicant’s records in the integrated Personnel Electronic Record Management System (iPERMS) contains assignment orders and an officer evaluation report (OER) showing he was still performing duties with the OKARNG at least through 31 January 2010.

5.  In previous cases processed by the Board, information was obtained from the Chief, Enlisted Professional Development Branch, Department of the Army Office of the Deputy Chief of Staff, G-1, which indicated that although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service or started transition leave during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service.

6.  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 that went into effect on 1 August 2009.

7.  Public Law 110-252 and Department of the Army, G1 Post 9/11 GI Bill Policy, dated 10 July 2009, provides that a veteran may modify entitlements or revoke entitlements among only those dependents that were designated to receive transferred benefits prior to separating from the Armed Forces.  Veterans who transferred entitlements prior to separation or retirement from the Armed Forces may not add new family members after separation or retirement. 

8.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The Department of Veterans Affairs 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 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, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

9.  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.
DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s claim that he was told that he had to take no action to transfer his benefits is not in doubt, he has failed to show through the evidence of record and the evidence submitted with his application that such was the case.

2.  The laws and policies governing the transfer of education benefits (TEB) provide that service members must make the election to TEB prior to separation from the service.

3.  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.  However, 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.

4.  The evidence of record shows the applicant retired outside the first 90 days of implementation of the program (on the 91st day).  More importantly, however, there is evidence of his continuing to serve in the ARNG well beyond even the 91st day.  Therefore, in the absence of evidence to show that he was advised that he did not have to apply to receive his TEB, there is an insufficient evidentiary basis for granting the applicant's requested relief.

5.  If those assignment orders and the ending date on his last OER of record are in error, and if the applicant can provide a statement of retirement points or a retirement points detail summary or other evidence showing when his last drill date was (i.e., was it prior to 1 November 2009), the applicant may provide that evidence to the Board with a request for reconsideration.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20130008214





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ABCMR Record of Proceedings (cont)                                         AR20130008214



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