BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130012277 


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 transfer of his educational benefits to an additional dependent under the Post 9/11 GI Bill Transferability Program.

2.  The applicant states:

* his current eligibility letter only shows a son who no longer attends college
* it was not clear or widely publicized that unless a transfer of benefits had been documented additional dependents would be eliminated from eligibility once a retirement date was effective

3.  The applicant provides:

* one page of a Department of Defense (DOD) Transfer of Education (TEB) document, dated 20 June 2013
* emails

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.  A DD Form 93 (Record of Emergency Data), dated 2 November 2008, shows the applicant listed a spouse and three dependent children, "JNK," "AJK," and "MLK."

3.  The applicant provides emails and a one-page DOD TEB document that shows he was approved to transfer his educational benefits under the Post 9/11 GI Bill Transferability Program.  This document shows he transferred 10 months of educational benefits to his dependent son "MLK" for the period 21 August 2009 through 31 December 2012.

4.  On 31 May 2011, the applicant was transferred to the Retired Reserve.

5.  His record is void of evidence showing he designated additional dependents to receive transferred benefits prior to retirement and he does not provide such evidence.

6.  On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states 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.

7.  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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

8.  Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits.

     a.  The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve.   

     b.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of education benefits to his or her dependent (on or after 1 August 2009).  The applicant’s last day in service was 31 May 2011.  

     c.  A veteran may modify or revoke entitlement among only those dependents who were designated to receive transferred benefits prior to separation from the Armed Forces.  Veterans who transferred entitlement prior to separating or retiring from the Armed Forces may not add new dependents after separation or retirement.

9.  The Army, DOD, and VA initiated a massive public campaign that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and transfer of education benefits.  The information was published well in advance with emphasis on the criteria.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was fully eligible to transfer his education benefits under the Post 9/11 GI Bill Transferability Program prior to his retirement.

2.  Although he had other dependents, he only listed his son "MLK" as the designated beneficiary at the time he submitted his request.  He had ample time to enroll his other dependents prior to his transfer to the Retired Reserve; however, he did not do so.

3.  The Army, DOD, and VA initiated a massive public campaign that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and transfer of education benefits.  The probability is high that Soldiers who left service after the 90 days following the program's implementation were not aware of the program.  However, he was transferred to the Retired Reserve in 2011, well past the 90-day window.  Therefore, his argument that information was not well publicized is not supported by the evidence.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  __X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      _______ _  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)                                         AR20130012277



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ABCMR Record of Proceedings (cont)                                         AR20130012277



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