IN THE CASE OF:	  

		BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130008402 


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 applied to transfer his educational benefits to his spouse under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill before he left active duty on 8 October 2009.

2.  The applicant states that the Post 9/11 GI Bill Program had just been implemented and was still undergoing changes at the time of his medical retirement and it was not being properly briefed because he was not informed that he needed to add his dependents prior to leaving active duty. 

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his Department of Veterans Affairs (VA) Rating Decision.

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 served on active duty from 10 April 1984 to 20 December 1991.  He again enlisted in the Regular Army on 22 July 1999 and continued to serve through a series of continuous reenlistments.  He served in Iraq during the period 8 April 2003 – 29 October 2003.

3.  On 8 October 2009, he was honorably retired in the pay grade of E-6 at Fort Drum, New York under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1) due to permanent disability.  He had served 17 years, 10 months, and 29 days of active service.

4.  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.

5.  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 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

6.  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.

7.  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 or has at least 10 years of service (active duty or Selected Reserve) on the date of election, is precluded by either standard policy or statute from committing to an additional 4 years, and agrees to serve for the maximum amount of time allowed by such policy or statute.

 DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to show he applied for and the Army approved transferring his benefits under the TEB provision of the Post-9/11 GI Bill to his dependents prior to his retirement from active duty 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.  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.

3.  The evidence of record shows the applicant retired within 90 days of implementation of the program and had more than 10 years of service.  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 educational benefits under the Post-9/11 GI Bill transferability provision upon implementation of the program while still serving 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 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 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)                                         AR20130008402





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ABCMR Record of Proceedings (cont)                                         AR20130008402



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