IN THE CASE OF: 

		BOARD DATE:	  20 May 2014

		DOCKET NUMBER:  AR20130015576 


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 youngest daughter 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 he transferred 24 months of his MGIB educational benefits to his daughter (Vashti) and his other daughter (Faith) had 0 months.
He has 12 months of educational benefits remaining and would like to transfer his remaining benefits to his daughter (Faith) who graduates in 2014.

3.  The applicant provides a copy of his milConnect TEB printout.

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 having had prior service in the U.S. Army Reserve (USAR), Regular Army, and Army National Guard, the applicant again enlisted in the USAR

3.  He was promoted to sergeant first class/pay grade E-7 on 15 July 2004.

4.  Headquarters, 99th Regional Support Command, Fort Dix, NJ, Orders
10-123-00012, dated 3 May 2010, released the applicant from his USAR unit and assigned him to the USAR Control Group (Retired Reserve) effective 2 June 2010.

5.  Headquarters, U.S. Army Human Resources Command, Orders C12-292223, dated 12 December 2012, placed the applicant on the Retired List effective        20 August 2013.

6.  In support of his application the applicant provides a copy of his milConnect TEB printout that shows his request to transfer 24 months of educational benefits to his daughter (Vashti), with a Begin Date of 20 August 2009 and End Date of 
1 August 2011, was approved on 20 August 2009.  The Acknowledgements section shows, in pertinent part, "I understand I may transfer up to 36 months (or my remaining months of eligibility, whichever is less) of my educational benefits to spouse and/or children, and can modify or revoke my election at any time."

7.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his educational benefits under the Post-9/11 GI Bill transferability program prior to retirement.  

2.  On 20 August 2009, he transferred 24 months of his educational benefits to his daughter Vashti.  There is no evidence of record that he transferred any of his educational benefits to his daughter Faith.
3.  The applicant transferred to the USAR Control Group (Retired Reserve) on
3 June 2010.

4.  The implementing policy guidance established by the Department of Defense shows that, provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the number of months allocated to eligible family members can be made at any time, to include after leaving military service.

   a.  The TEB printout that the applicant provides listed his daughter Vashti with 24 months of educational benefits; however, it does not list his daughter Faith.

   b.  The TEB Acknowledgements shows, in pertinent part, that he could modify or revoke his election at any time and that he retained the right to change or modify months of entitlement (up to 36 months) at any time until they are exhausted.  However, it does not show a requirement to transfer a minimum of 
1 month of benefits to an eligible dependent to establish their eligibility.
   
   c.  Thus, the TEB Acknowledgements are not clear because they advise that the election can be modified at any time until educational benefits are exhausted; however, they do not provide information regarding the requirement to transfer at least 1 month of benefits to an eligible dependent upon enrollment.

5.  Therefore, as an exception to policy, it would be appropriate in this case to correct the applicant's military records to show he elected to transfer a portion of his benefits to his daughter (Faith) as an eligible family member under the Post-9/11 GI Bill transferability program 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 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 he elected and the Army approved his request to transfer a portion of his benefits to his daughter (Faith Rose C-----) as an eligible family member under the Post-9/11 GI Bill transferability program 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)                                         AR20130015576



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ABCMR Record of Proceedings (cont)                                         AR20130015576



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