BOARD DATE:	  26 June 2014

		DOCKET NUMBER:  AR20130017962 


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, correction of his record to show he submitted a timely application to transfer his Post-9/11 GI Bill education benefits to his dependents.

2.  He states that while outprocessing at Fort Hood, TX, he attended the Department of Veterans Affairs (VA) briefing on education benefits, and he stated he intended to transfer his education benefits to his dependents with half going to each dependent.  When he filled out the VA Form 22-1990 (Application for VA Education Benefits), he entered his dependents' information in the remarks section for the purpose of transferring benefits to them.  However, during his outprocessing briefing the transfer wasn't properly explained nor was his request processed correctly.

3.  He provides a VA Form 22-1990 and a VA letter to a Congressman regarding transfer of benefits to his dependents.

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 20 March 1990, the applicant enlisted in the Regular Army.

3.  He provides a VA Form 22-1990, dated 10 February 2010, showing he applied for Post-9/11 GI Bill benefits.  He indicated he intended to pursue a degree in criminal law beginning in March 2010.  He listed two dependents in item 25 (Remarks).  The form makes no reference to transfer of Post-9/11 GI Bill benefits to his dependents.

4.  On 30 June 2010, he retired after completing 20 years, 3 months, and 11 days of active military service.

5.  On 16 July 2013, a U.S. Army Human Resources Command staff member informed him that a request to transfer Post-9/11 GI Bill benefits to eligible dependents had to be submitted through the Defense Manpower Data Center (DMDC) web application.  The staff member noted the information the applicant had provided was likely from the VA, not from the DMDC web application.  The staff member stated she could not find any evidence that he had transferred benefits to his dependents prior to his retirement, and she informed him that she might be able to assist him if he were able to provide a screen shot of a transfer request submitted through the DMDC web application.

6.  He provides a VA letter, dated 21 August 2013, that shows he had requested assistance from a Congressman in transferring his Post-9/11 GI Bill benefits.  The VA provided the criteria for transfer of education benefits, informed the Congressman that the VA does not determine eligibility for transfer of benefits, and informed the Congressman that the applicant could apply to this Board if he believed he was not properly informed of the opportunity to transfer his education benefits.

7.  Department of Defense (DOD) Directive-Type Memorandum 09-003, dated 22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members.
	
	a.  Eligible individuals include members of the Armed Forces on or after 1 August 2009 who, at the time of the approval of their request to transfer entitlement to educational assistance under this section, are eligible for the Post-9/11 GI Bill, and:

	b.  have at least 6 years of service in the Armed Forces on the date of election and agree to serve 4 additional years in the Armed Forces from the date of election; or

	c.  have at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, are precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agree to serve for the maximum amount of time allowed by such policy or statute; or

	d.  were or became 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.)  For those individuals who had an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service was required.  For those individuals eligible for retirement:

* on or after 1 August 2009 and before 1 August 2010, 1 year of additional service was required
* on or after 1 August 2010 and before 1 August 2011, 2 years of additional service was required
* on or after 1 August 2011 and before 1 August 2012, 3 years of additional service was required

8.  The policy further states the Secretaries of the Military Departments will provide counseling on Post-9/11 GI Bill benefits to active duty participants and members of the Reserve Components with qualifying active duty service prior to separation or release from active duty and document accordingly.

9.  During the implementation phase of the program (the first 90 days), many Soldiers were unaware of the requirements for transferring Post-9/11 GI Bill education benefits.  The Army, DOD, and VA 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 benefits.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of his record to show he submitted a timely application to transfer his Post-9/11 GI Bill education benefits to his dependents.

2.  Information on the Post-9/11 GI Bill was widely available when he retired several months after the implementation phase had ended, and, as part of his retirement processing, he was required to receive counseling on his Post-9/11 GI Bill benefits.  He has not provided any documentary evidence indicating he was improperly counseled.  Further, there is no evidence that he followed the established procedure by submitting an application through the DMDC web application while he was on active duty.  By the time he was outprocessing, this was a well-established and well-publicized procedure.  It remains the only way to apply for transfer of education benefits.  

3.  It is noted that, had an application to transfer education benefits been submitted and approved, he would have incurred a 1-year service obligation, and he would have forfeited his eligibility to transfer benefits by retiring on 30 June 2010.

4.  In the absence of evidence indicating he was unfairly deprived of the opportunity to transfer education benefits prior to being retired, there is an insufficient basis upon which to grant the requested relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X_____  __X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      __________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)                                         AR20130017962





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ABCMR Record of Proceedings (cont)                                         AR20130017962



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