BOARD DATE: 2 December 2014
DOCKET NUMBER: AR20140006599
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 an exception to policy to transfer educational benefits to his family member under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states, in effect, he was transitioning from the Army during the period the Post 9/11 GI Bill transfer policy was being implemented; therefore, he was not aware that the transfer of education benefits had to occur prior to his retirement.
3. The applicant provides a self-authored letter and 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 applicants DD Form 214 shows he enlisted in the Regular Army on
7 July 1988 and continuously served until he was retired from active duty on
30 November 2009. He completed over 21 years of creditable active duty service.
3. The applicant's military pay record confirms he used 45 days of transition leave from 17 October 2009 through 30 November 2009.
4. Department of Defense (DOD) established the criteria for the TEB provision of the Post-9-11 GI Bill on 22 November 2009. 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.
5. The Office of the Deputy Chief of Staff, Army G-1, Enlisted Professional Development Branch, Washington, D.C. has previously stated that although significant measures were taken to disseminate information concerning 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.
6. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education 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.
7. The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents. A member is considered to be retirement eligible upon completion of 20 years of active Federal service or
20 qualifying years as computed under Title 10, U.S. Code, section 12732. No additional service required Service members who have an approved retirement date after 1 August 2009 and before 1 July 2010.
DISCUSSION AND CONCLUSIONS:
1. The applicant was fully eligible to transfer his education benefits under the TEB prior to retirement, but he did not do so. The program was implemented in August 2009 and he retired on 30 November 2009 after completing just over 21 years of active duty service. Although significant measures were taken to disseminate information on 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 requirements.
2. He began his transition leave in 17 October 2009 and retired on 30 November 2009. It is reasonable to presume that had he been aware of the procedure to transfer his benefits while in an active duty status he would have done so. Therefore, as a matter of equity, his records should be corrected to show he did so in a timely manner prior to his effective date of retirement.
3. In view of the above, his request should be granted.
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 dependents 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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