IN THE CASE OF:
BOARD DATE: 1 May 2014
DOCKET NUMBER: AR20130015766
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 that he be allowed to transfer his Post-9/11 GI Bill benefits to his dependents.
2. He states transfer policies were unclear at the time he submitted his application for benefits prior to his retirement. He outprocessed from Fort Lewis, WA, in early July 2009, and he began transition leave on 18 July 2009. On 30 September 2009, he retired after 25 years of active duty service. In August 2009, he applied for his Post-9/11 GI Bill benefits and received his Certificate of Eligibility. He does not recall that the online application process allowed him to transfer his benefits to his dependents at that time. A Department of Veterans Affairs (VA) benefits fact sheet he was using stated that the Department of Defense (DOD) and the military services would issue policy on transferability in the coming months. He was not aware that he needed to transfer benefits while he was on active duty.
3. He provides:
* orders
* VA Certificate of Eligibility
* VA Fact Sheet 22-08-01 (The Post-9/11 Veterans Education Assistance Act of 2008)
* VA letter
* e-mail
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 30 September 2009, the applicant retired by reason of sufficient service for retirement after completing 25 years, 3 months, and 28 days of creditable active service.
3. He provides, in part, a letter from the VA, dated 25 February 2013, informing him DOD records showed he had not been approved to transfer benefits to a dependent.
4. On 22 June 2009, 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.)
5. 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:
The evidence of record shows the applicant retired on 30 September 2009 within 90 days of implementation of the program authorizing transfer of Post-9/11 GI Bill benefits. Because he retired before information on the requirements of the program had been thoroughly disseminated, it would be appropriate to correct his record to show he submitted a timely request to transfer his Post-9/11 GI Bill benefits to his dependents prior to his retirement 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 dependents 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) AR20130015766
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130015766
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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