IN THE CASE OF:
BOARD DATE: 7 October 2014
DOCKET NUMBER: AR20140003238
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 he applied for and the Army approved the transfer of his education benefits to his family members in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to his retirement.
2. The applicant states, in effect, that he was on active duty at the Pentagon on 11 September 2001 and he served there until 31 August 2009. He is fully eligible to transfer his GI Bill benefits to a dependent; however, he has been unable to do so and desires it to be corrected.
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. The applicant enlisted in the Regular Army on 20 July 1989. He successfully completed his training as a human resources specialist and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 1 June 2002.
3. The applicant was honorably retired on 31 August 2009. He had served 20 years, 1 month and 11 days of active service and was placed on the Retired List effective 1 September 2009.
4. 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 which went into effect on 1 August 2009.
5. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute the transfer of benefits only while serving as a member of the Armed Forces. The Department of Veterans Affairs is responsible for final determination of eligibility for educational benefits under this program. General eligibility criteria are as follows:
a. Service members must have accrued specific qualifying active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.
b. Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.
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 for administration of the program.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for correction of his records to show he applied for and the Army approved transferring his educational benefits to his family members under the TEB provision of the Post-9/11 GI Bill prior to retirement has been considered and is found to have merit.
2. 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. The applicant was being processed for retirement at the time and it is reasonable to believe he may have been on transition leave and may not have been properly informed of the requirements to transfer his educational benefits prior to his retirement.
3. Therefore, given the circumstances in this case, it would serve the interest of equity to correct his records to show he applied for and the Army approved the transfer of his educational benefits to his eligible family members under the TEB provision of the Post-9/11 GI Bill prior to his retirement date of 1 September 2009.
BOARD VOTE:
____x___ ____x___ ___x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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 educational benefits to eligible family members under the TEB provision of the Post-9/11 GI Bill prior to his retirement, provided all other eligibility criteria are met.
2. The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Global War on Terrorism are deeply appreciated. The applicant and all Americans should be justifiably proud of his service in arms.
____________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) AR20140003238
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ABCMR Record of Proceedings (cont) AR20140003238
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