BOARD DATE:	  23 October 2014

		DOCKET NUMBER:  AR20140004279 


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, an exception to policy to transfer his Post
-9/11 GI Bill education benefits to her son.

2.  The applicant states:

   a.  She was on transition leave in August 2009 when this program was implemented and the guidelines were not made clear to her.  At the time of her discharge she was not properly notified that she would never be allowed to transfer her Post-9/11 GI Bill benefits after retiring nor was she advised to transfer at least one month of these benefits to her beneficiaries prior to retiring in order to make her son eligible for this program in the future.  She was notified by the Department of Veterans Affairs (VA) that her son was not eligible for this program because the benefits were not transferred as required and to apply to the Board as soon as possible.

   b.  Her son's date of birth is 9 February 1994.  He is enrolled in the Defense Enrollment Eligibility Reporting SystemDEERS, he is in the process of enrolling in college, and the cost is extreme.  She has not used any portion of her Post-9/11 GI Bill benefits.  Her son would benefit greatly by them and this correction would relieve severe financial hardship to their family.

3.  The applicant provides no additional evidence.



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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army on 14 November 1983 and she served continuously on active duty in various assignments.

3.  She was retired on 30 November 2009.  She was credited with completing 26 years and 17 days of net active service.

4.  On 16 October 2014, a staff member of the Defense Finance and Accounting Service verified the applicant was on transition leave from 1 September 2009 through 30 November 2009.

5.  On 29 June 2009, the Department of Defense (DoD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states any member of the Armed Forces on or after 1 August 2009 who, at the time of approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post
-9/11 GI Bill and:

   a.  has a least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or

   b.  has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either standard policy (service of DoD) or statute from committing to 4 additional years and agrees to service for the maximum amount of time allowed by such policy or stature; or

   c.  is or becomes 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 service or 20 qualifying years of Reserve service.

6.  The policy further states the Secretaries of the Military Department will provide active duty participants and members of the Reserve Components with qualifying active service individuals pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain record for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

7.  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 evidence of record shows the applicant retired on 30 November 2009 after completing more than 20 years of service.  In previous cases, the Office of the Deputy Chief of Staff, G-1, had opined that although significant measures were taken to disseminate the transferability of unused Post-9/11 GI Bill benefits many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer the benefits prior to leaving military service.

2.  The applicant signed out on transition leave on 1 September 2009 which was within 90 days of implementation of the program.  She contends and it is reasonable to presume she was not aware of the requirement to transfer her educational benefits prior to retirement; therefore, none of the required steps to transfer her benefits were taken.  Based on the foregoing and as a matter of equity, her records should be corrected to show she transferred her benefits to her dependent under the Transfer of Education Benefits provisions of the Post-9/11 GI Bill.

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 her application and the Army approved her request to transfer Post-9/11 GI Bill benefits to her dependent prior to her 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)                                         AR20140004279





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ABCMR Record of Proceedings (cont)                                         AR20140004279



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