IN THE CASE OF:
BOARD DATE: 17 April 2014
DOCKET NUMBER: AR20130014247
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, in effect, an exception to policy to the Post-9/11 GI Bill that will allow him to transfer his education benefits to his family members.
2. The applicant states, in effect, he was never advised that he had to or could transfer his benefits before he retired. He goes on to state that the injustice occurred due to a lack of communication and confusion about the requirements for transfer between 2009 and early 2010. He also states that he did not realize the problem until he applied for GI benefits himself and he was informed that he could not transfer his benefits to his dependents.
3. The applicant provides a copy of a letter to his congressional representative, a letter from the National Guard Bureau (NGB) informing him that he was not eligible for transfer of his benefits, and a letter from the Department of Veterans Affairs (VA) granting him benefits.
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 was serving as a master sergeant in the Utah Army National Guard (UTARNG) Joint Forces Headquarters on 25 March 2010 when he was honorably discharged from the UTARNG and transferred to the Retired Reserve. He was 60 years of age at the time of his discharge.
3. On 21 March 2013, officials at the NGB dispatched a letter to the applicants Congressional Representative informing him that while the applicant was eligible to transfer his benefits while he was in an active status, he did not complete a request to transfer his benefits before he retired on 25 March 2010; therefore, under the law he was no longer eligible.
4. Public Law 110-252, section 3319, dated 22 June 2008, authorized the transfer of unused education benefits to family members. The law provided that the Secretary of Defense would prescribe the implementation of the program. It also provided that eligible participants must be serving as a member of the Armed Forces when the transfer is executed.
5. On 22 June 2009, the Office of the Under Secretary of Defense released Directive-Type Memorandum 09-003 Post-9/11 GI Bill that announced individuals serving in the Armed Forces could affect a transfer of the GI Bill benefits effective 1 August 2009.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions and supporting documents have been noted. However, according to the applicable law and regulation, he is not eligible to transfer benefits under the Post-9/11 GI Bill transferability program. He retired from the UTARNG on 25 March 2010 and there is no record of his transferring his educational benefits prior to his retirement.
2. The Departments of the Army, Defense, and Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues. Information on the Post-9/11 GI Bill and subsequent transfer of entitlements was published well in advance of its implementation.
3. While the sincerity of the applicants claim that he was not informed he could make the transfer is not in doubt, the evidence submitted with his application and the evidence of record does not support his claim. Therefore, 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:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States. 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) AR20130014247
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