IN THE CASE OF:
BOARD DATE: 11 June 2014
DOCKET NUMBER: AR20130018339
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, authorization to transfer his educational benefits to additional family members.
2. The applicant states that at the time of his retirement he was not informed of the requirement to start the transfer process prior to leaving active duty. Had he been properly informed, he would have completed the process. He also states the Post-9/11 GI Bill process was still new and he can see how the requirement may not have been fully explained to those who left the military. Accordingly, he desires to add his daughter to receive his educational benefits.
3. The applicant provides a copy of a letter from the Department of Veterans Affairs (VA) to his Congressional representative regarding his transfer of educational 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 enlisted in the Regular Army on 7 July 1982. He completed training as an armor crewman and remained on active duty through a series of continuous reenlistments. He was promoted to pay grade E-8 on 1 July 2004.
3. On 31 December 2009, he was honorably retired. He completed 27 years, 5 months, and 24 days of active service. He was placed on the Retired List effective 1 January 2010.
4. The letter from the VA to his Congressional representative indicates the applicant was approved to transfer 36 months of his benefits to his stepson. He subsequently reduced the number of months to 18 months and then increased them to 32 months. He was advised to apply to this Board if he believed he was not properly informed of the transfer requirements.
5. In previous cases processed by the Board, information was obtained from the Chief, Enlisted Professional Development Branch, Department of the Army Office of the Deputy Chief of Staff, G-1, which indicated that although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service or started transition leave during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service.
6. Information received from the Defense Finance and Accounting Service indicates that the applicant departed on terminal leave during the period 13 October 31 December 2009.
7. The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public
Law 110-252, House of Representatives, 2642. In July 2008, Congress passed a law for the Post-9/11 GI Bill that went into effect on 1 August 2009.
8. Public Law 110-252 and Department of the Army, G-1, Post-9/11 GI Bill Policy, dated 10 July 2009, provide that a veteran may modify entitlements or revoke entitlements among only those family members who were designated to receive transferred benefits prior to separating from the Armed Forces. Veterans who transferred entitlements prior to separation or retirement from the Armed Forces may not add new family members after separation or retirement.
DISCUSSION AND CONCLUSIONS:
1. The Post-9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level. However, specific guidance for the requirement to apply for the benefits prior to leaving military service was not fully available to members who transitioned within the first 90 days after implementation of the program on 1 August 2009.
2. The applicant departed on terminal leave on 13 October 2009, which was within 90 days of implementation of the program. In view of the fact that transfer application procedures were not fully implemented at the time the applicant separated, it would serve the interest of equity to correct his records to show he applied to transfer his educational benefits under the Post-9/11 GI Bill transferability provision upon implementation of the program while still serving on active duty.
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 his Post-9/11 GI Bill benefits to his dependents prior to his separation, provided all other 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) AR20130018339
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ABCMR Record of Proceedings (cont) AR20130018339
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