IN THE CASE OF:
BOARD DATE: 26 August 2014
DOCKET NUMBER: AR20130021429
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 approval for transfer of his Post-9/11 GI Bill benefits to his eligible family members.
2. The applicant states when the program started on 1 August 2009, he had already outprocessed from Fort Bragg, NC, and he was on permissive temporary duty (TDY) and going into his transition leave. He did not have the opportunity to sign up and transfer his education benefits to his family. Last year he was informed he could transfer the benefits but he did not know the process. He has continuously tried to get things squared away with the Department of Veteran Affairs (VA) but he has been given the run around. He was recently informed that he needed to get the approval through the Army Review Boards Agency.
3. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), retirement orders, DA Form 4187 (Personnel Action), and five DA Forms 31 (Request and Authority for Leave).
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. Orders Number 128-0251, dated 8 May 2009, as amended by Orders Number 205-267, dated 24 July 2009, directed the applicant's retirement effective
5 November 2009.
3. The Defense Finance and Accounting Service (DFAS) confirmed he was on permissive TDY during the periods 6-10 July 2009, 27-31 July 2009,
3-7 August 2009, and 10-13 August 2009, and on transition leave from 18 August through 5 November 2009.
4. His DD Form 214 shows he retired on 5 November 2009 after completing over 22 years of active duty service.
5. 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 of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces.
The VA is responsible for final determination of eligibility for educational benefits under this program.
6. On 10 July 2009, the Army released the Post -9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request to correct his record to show he was eligible to transfer his Post-9/11 GI Bill benefits has been carefully considered.
2. The law governing the transferability of unused Post-9/11 GI Bill benefits places legal limitations on transferability. Members must register and complete transfer prior to leaving the service.
3. During the initial implementation of this new program, many Soldiers were confused regarding their eligibility and/or the procedure to apply for such benefits. This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program implementation. Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.
4. The Army has generally granted relief to members who left the service within the first 90 days after implementation of the program on 1 August 2009. In this case, the applicant's last day in the service was 5 November 2009. Although his last day in the service was 96 days after the program implementation, DFAS records confirm his contention that he was in transition from the military during the initial phase of the program. It is reasonable to presume he was not aware of the procedure to transfer his education benefits while in an active duty status.
5. Therefore, as a matter of equity, his record should be corrected to show he applied to transfer his education benefits under the Post-9/11 GI Bill to all his eligible family members prior to his retirement on 5 November 2009.
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 eligible family members prior to 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) AR20130021429
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