IN THE CASE OF:
BOARD DATE: 21 August 2014
DOCKET NUMBER: AR20140000390
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 records to show approval of the transfer of education benefits to his son under the transfer of educational benefits (TEB) provision of the Post 9/11 GI Bill prior to retirement.
2. The applicant states:
* He was not informed by his chain of command or out-processing personnel prior to his separating from the service that he could be approved to transfer his Post 9/11 GI Bill benefits
* He was on terminal leave for 103 days prior to his retirement date of 31 August 2009
* He was not contacted by his command of the new administrative change
* He was not afforded the opportunity to exercise his option of transferring his educational benefits to his son
* His son is interested in attending post-graduate and graduate institutions upon his graduation from high school
* If he had been given the opportunity to complete the paperwork at some point prior to his retirement, he would have completed the requirement
* He believes that approval of his request is justified
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 completing 20 years and 9 days of active duty service, the applicant was retired on 31 August 2009 in the rank of sergeant first class/E-7.
3. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant retired on 31 August 2009, within 90 days of the implementation of the program authorizing transfer of Post 9/11 GI Bill benefits. 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 that left service during the first 90 days of the program were not fully aware of the requirement to transfer education benefits prior to leaving military service.
2. In view of the available evidence, 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 dependent son prior to retirement.
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 dependent son prior to retirement, provided all other program eligibility criteria are met.
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 hi Post 9/11GI Bill benefits6to his dependent son 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) AR20140000390
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