IN THE CASE OF:
BOARD DATE: 6 March 2014
DOCKET NUMBER: AR20130011963
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 unaware he could transfer his benefits because the Post-9/11 Bill wasn't briefed to him when he went on transition leave in May 2009
* nobody knew the specifics of the bill
* he was never informed of the Post-9/11 Bill transfer option
* he officially retired on 1 October 2009
* he recently found out about a waiver
* he has 36 months of eligibility
3. The applicant provides:
* retirement orders
* DD Form 31 (Request and Authority for Leave)
* 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. After completing over 20 years of creditable active service, the applicant retired on 30 September 2009 in the rank of chief warrant officer three.
3. There is no evidence of record which shows he transferred his Post-9/11 GI Bill benefits to his dependents prior to his retirement.
4. On 22 June 2009, the Department of Defense (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 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 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.
5. 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.
6. DOD, the Army, and the Department of Veterans Affairs 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.
7. In similar cases, the Department of the Army Office of the Deputy Chief of Staff, G-1, recommended administrative relief for applicants who left military service within 90 days of implementation of the program.
DISCUSSION AND CONCLUSIONS:
The applicant retired on 30 September 2009 which was within 90 days after the Post-9/11 GI Bill transferability provision's implementation. Therefore, it would be appropriate to correct his military records to show he elected to transfer educational benefits to his eligible family members under the Post-9/11 GI Bill transferability provision prior to his retirement date.
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 he elected to transfer educational benefits to his eligible family members under the Post-9/11 GI Bill transferability provision prior to his retirement date, 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) AR20130011963
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