IN THE CASE OF:  	  

		BOARD DATE:  5 February 2015  	  

		DOCKET NUMBER:  AR20140009884 


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 elected transfer of his educational benefits to his dependents under the Post-9/11 GI Bill transferability provision.

2.  The applicant states:

* he wants permission to transfer his Wisconsin State GI Bill benefits to his dependent children
* he was unaware that he needed to do this before his discharge
* he was never informed that he needed to transfer benefits before his discharge
* his daughter is currently enrolled in a university and she is running out of her dependent benefits in order to graduate

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 June 2007.

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.  Having prior inactive service in the U.S. Army Reserve (USAR) and active service in the Regular Army, the applicant enlisted in the USAR on 10 December 1999.  He was ordered to active duty in support of Operation Iraqi Freedom effective 7 February 2006 and he served in Kuwait/Iraq from 5 May 2006 to 23 April 2007.  He was released from active duty on 19 June 2007.

3.  His records show he was discharged from the USAR effective 10 December 2009 due to misconduct (serious offense – drug abuse).  His complete discharge packet is not available for review.

4.  There is no evidence that shows he elected to transfer his Post-9/11 GI Bill benefits to his dependents prior to his discharge.

5.  His USAR chronological statement of retirement points, dated 20 January 2015, shows he completed 14 years of qualifying service effective 10 December 2009.

6.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  This policy states an eligible individual is 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, and does not have an adverse action flag, is eligible for the Post-9/11 GI Bill and:

	a.  has at 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 or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute; 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 duty or 20 qualifying years of Reserve service.
7.  This policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

8.  DOD, the Army, and the Department of Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was never informed that he needed to transfer his GI Bill benefits before his discharge.  However, DOD, the Army, and the VA conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.

2.  There is no evidence indicating he was not given proper guidance regarding the benefits under the Post-9/11 GI Bill.  In the absence of evidence to the contrary, it must be presumed that the applicant's separation processing was administratively correct and in conformance with applicable regulations.

3.  Based on his discharge from the USAR for misconduct, he would have had or should have had an adverse action flag against his records making him ineligible for the Post-9/11 GI Bill.  Therefore, there is no basis for granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20140009884



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ABCMR Record of Proceedings (cont)                                         AR20140009884



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