BOARD DATE: 6 November 2014
DOCKET NUMBER: AR20140006373
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 he started his transition leave on 23 June 2009 and he was placed on the Retired List on 1 October 2009. He does not remember having the opportunity to transfer the benefits or knowing that he needed to transfer the benefits prior to retirement. The program was so new at the time of his retirement and he believes the details were unclear.
3. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 31 (Request and Authority for Leave), and retirement orders.
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 049-002, dated 18 February 2009, directed the applicant's retirement effective 30 September 2009.
3. A DA Form 31 shows he was approved for transition leave/permissive temporary duty from 23 June through 30 September 2009.
4. His DD Form 214 shows he retired on 30 September 2009 after completing 20 years and 12 days 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 for correction of 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 30 September 2009. Additionally, a DA Form 31 confirms 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 30 September 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.
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