IN THE CASE OF:
BOARD DATE: 4 November 2014
DOCKET NUMBER: AR20140005063
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 his spouse.
2. The applicant states during the retirement briefing he was not offered or informed of the ability to transfer education benefits to his spouse. It was not offered during his transition, but had been available since 1 August 2009.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 31 October 2009.
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 31 July 1985. He served continuously on active duty through various assignments until he retired on 31 October 2009. He was credited with completing 24 years, 3 months, and 8 days of net active service.
3. The Defense Finance and Accounting Service verified the applicant was on transition leave from 23 July 2009 through 11 August 2009 and from 12 August 2009 through 31 October 2009.
4. 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.
5. 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.
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 evidence of record shows the applicant retired on 31 October 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 retired on 31 October 2009 after taking transition leave from 23 July to 31 October 2009, which was within 90 days of implementation of the program. He contends and it is reasonable to presume he was not aware of the requirement to transfer his educational benefits prior to retirement; therefore, none of the required steps to transfer his benefits were taken. Based on the foregoing and as a matter of equity, his records should be corrected to show he transferred his benefits to his 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 his application and the Army approved his request to
transfer Post-9/11 GI Bill benefits to his dependent prior to his 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) AR20140005063
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ABCMR Record of Proceedings (cont) AR20140005063
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