IN THE CASE OF:	   

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130010179 


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 elected transfer of his educational benefits to his dependents under the Post-9/11 GI Bill transferability provision.

2.  The applicant states:

* he was not properly informed of the opportunity to transfer Post-9/11 GI Bill entitlements to his spouse or dependents
* this entitlement would have influenced his decision to serve beyond the entitlement requirements

3.  The applicant provides:

* Department of Veterans Affairs (VA) Certificate of Eligibility
* two memoranda of endorsement

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 over 20 years of creditable active service, the applicant retired from the Regular Army on 31 October 2006 in the rank of lieutenant colonel.

3.  He provided a VA Certificate of Eligibility, dated 20 February 2013, which shows he is entitled to educational benefits under the Post-9/11 GI Bill.

4.  He also provided two memoranda from a colonel and major general who endorse a waiver for transferability of the Post-9/11 GI Bill entitlement for the applicant.

	a.  In a memorandum, dated 7 May 2013, the colonel attests:

* the applicant was not properly informed of the opportunity to transfer educational benefits to his spouse or dependents
* he served as an active duty Army officer for more than 20 years
* when he retired from the Army in 2006 the Post-9/11 GI Bill entitlements did not exist
* he was later granted Post-9/11 GI Bill entitlements for himself, but was not granted transferability to his spouse or dependents
* he was not properly informed of the future opportunity to transfer this benefit to his dependents

	b.  In a memorandum, dated 16 May 2013, the major general attests:

* the applicant served in an exemplary manner as his executive officer and with distinction as an active duty Army officer for more than 20 years
* he understands the statute creating the Post-9/11 GI Bill requires a transfer of the benefit while the service member is actively in the Armed Forces
* the decision to approve or deny such requests is solely within the purview of the Secretary of Defense, and the VA determines eligibility for transferred Post-9/11 GI Bill benefits based on information provided by the Department of Defense (DOD)
* the applicant is deserving of this benefit

5.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible individual is any member of the Armed Forces on or after 1 August 2009 who, at the time of 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 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.

6.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

7.  DOD, the Army, and the 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 educational benefits.

DISCUSSION AND CONCLUSIONS:

The applicant's contentions and endorsements were carefully considered.  However, since he retired on 31 October 2006, almost 3 years prior to implementation of the Post-9/11 GI Bill Transferability Program, he is not eligible to transfer benefits under the program to his dependents by law.



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 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 this action in no way diminishes the sacrifices he made in service to our Nation.  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)                                         AR20130010179



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ABCMR Record of Proceedings (cont)                                         AR20130010179



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