IN THE CASE OF:
BOARD DATE: 6 May 2014
DOCKET NUMBER: AR20130015150
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 transferred his Montgomery GI Bill (MGIB) educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to retiring from active duty.
2. The applicant states that during the period of his transition processing, he was not fully informed of the process and procedures for Soldiers to transfer their educational benefits. The program went into effect on 1 August 2009 while he was on transition leave.
3. The applicant provides a copy of his orders and 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. The applicant enlisted in the Regular Army (RA) on 24 August 1989 and, through a series of reenlistments, he continued to serve in the RA through
31 August 2009. He was promoted to sergeant first class/pay grade E-7 on 1 January 2003.
3. A DA Form 2339 (Application for Voluntary Retirement), dated 5 August 2008, shows the applicant requested a retirement date of 1 September 2009. Item 31 (Remarks) shows the applicant requested and had approved:
* 20 days permissive temporary duty (PTDY) from 14 May 2009 through
2 June 2009
* 90 days transition leave from 3 June 2009 through 31 August 2009
4. A DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members) shows the applicant received pre-separation counselling on 26 August 2008.
5. Headquarters, U.S. Army Maneuver Support Center, Fort Leonard Wood, MO, Orders 261-1319, dated 17 September 2008, authorized release of the applicant from active duty on 31 August 2009 to be placed on the retired list effective
1 September 2009. The orders show that he had dependents.
6. His DD Form 214 shows he was honorably retired from active duty on
31 August 2009 and transferred to the U.S. Army Reserve Control Group (Retired). He had completed 20 years and 7 days of creditable active service.
7. There is no evidence that the applicant completed a request to transfer educational benefits to any of his family members before leaving military service.
8. There is no evidence that the applicant's family members made a previous claim to the Department of Veterans Affairs (VA) for educational benefits.
9. Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members. The Public Law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members. Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.
10. The Department of the Army, Department of Defense, and the VA 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 the implementation date of 1 August 2009. However, many Soldiers who left service during the first 90 days of the program were not aware of the requirement to transfer their benefits prior to leaving military service.
11. The VA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was fully eligible to transfer his educational benefits under the Post-9/11 GI Bill transferability program prior to retirement.
a. He had at least 6 years of eligible service in order to transfer educational benefits to his spouse and at least 10 years of eligible service to transfer educational benefits to eligible children. He had more than 20 years of service upon his retirement.
b. He was serving on active duty on 1 August 2009 and his last day of active duty service was 31 August 2009, which was within 90 days after the program's implementation.
c. He was eligible to transfer his educational benefits to his authorized dependents enrolled in the Defense Eligibility Enrollment Reporting System.
2. The applicant was in a PTDY status from 14 May through 2 June 2009 and he was on transition leave from 3 June through 31 August 2009. As such, he may not have been aware of the requirement to transfer his benefits prior to leaving military service on 31 August 2009.
3. Therefore, it would be appropriate to correct his military record to show he elected to transfer benefits under the Post-9/11 GI Bill transferability program to his eligible family members 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 correcting his military record to show he filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his family members 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) AR20130015150
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ABCMR Record of Proceedings (cont) AR20130015150
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