IN THE CASE OF:
BOARD DATE: 22 April 2014
DOCKET NUMBER: AR20130013932
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 Post-9/11 GI Bill benefits to his spouse.
2. He states he was not briefed on transfer of Post-9/11 GI Bill benefits and did not have the opportunity to transfer his benefits to his spouse because he went on terminal leave in July 2009 before the program began. He would like to transfer his benefits to his spouse so she may complete her education.
3. He provides:
* memorandum, subject: Transferability of Chapter 33 Post 9-11 Education Benefits
* DA 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. On 31 October 2009, the applicant retired by reason of sufficient service for retirement after completing 22 years and 11 days of creditable active service.
3. He provides a DA Form 31 showing his request for terminal leave from 8 July to 31 October 2009 was approved and assigned a control number.
4. He provides a memorandum, subject: Transferability of Chapter 33 Post 9-11 Education Benefits, dated 30 June 2013, from a Guidance Counselor at Headquarters, U.S. Army Garrison, Fort Drum, NY. The memorandum states that, according to the Fort Drum Installation Clearance Record, the applicant was cleared from the Fort Drum Education Center on 15 June 2009, and he was not briefed on the Post 9-11 GI Bill transferability option.
5. 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 may transfer benefits if, at the time of the approval of the request to transfer entitlement to educational assistance under this section, the member 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 Army, Department of Defense, and Department of Veterans Affairs 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. However, during the first 90 days of the program, many Soldiers did not receive information on the requirements of the program.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant retired on 31 October 2009 after a period of terminal leave that began before implementation of the program authorizing transfer of Post-9/11 GI Bill benefits.
2. The available evidence supports correcting his record to show he submitted a timely request to transfer his Post-9/11 GI Bill benefits to his spouse prior to his retirement. Therefore, his record should be corrected as recommended below.
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 spouse prior to his retirement, 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) AR20130013932
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ABCMR Record of Proceedings (cont) AR20130013932
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