IN THE CASE OF:  

		BOARD DATE:  10 February 2015	  

		DOCKET NUMBER:  AR20140010959 


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 dependents.

2.  The applicant states the transfer of benefits was not processed before he retired.  He believes this is unjust based on page 2 of the Army Review Boards Agency (ARBA) 2011 Annual Report stating that some Soldiers retiring between 1 August 2009 and 1 November 2009 either did not have their transfer processed or were not informed or misinformed about the Post-9/11 GI Bill transfer requirements and options.  His retirement date was 3 September 2009.  The bill was implemented on 1 August 2009.  His daughter will be attending college this fall.  He applied and recently received his Certificate of Eligibility for the Post-9/11 GI Bill and attempted to transfer his benefit to her.  He was unaware that his transfer of benefits had not occurred because he did not have a college-aged dependent until recently.

3.  The applicant provides copies of the following:

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 19 May 2004 and 1 February 2009
* Notification of Eligibility for Retired Pay at Age 60 letter
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* 2009 Honorable Discharge Certificate
* ARBA 2011 Annual Report
* Department of Veterans Affairs (VA) Certificate of Eligibility
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 Arkansas Army National Guard (ARARNG) on 28 April 1992.  He served on active duty from/for:

* 5 June 2003 through 19 May 2004 – in support of Operation Noble Eagle
* 2 January 2008 through 1 February 2009 – in support of Operation Iraqi Freedom

3.  On 5 April 2009, he was issued a Notification of Eligibility for Retired Pay at Age 60 letter wherein he was notified of completion of the required years of service and eligibility for retired pay upon application at age 60.

4.  He was honorably discharged from the ARARNG on 3 September 2009 and was transferred to the Retired Reserve.  He was credited with completing 21 years, 5 months, and 4 days of total service.

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 Departments will provide active duty participants and members of the Reserve Components with qualifying active service individual 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 was transferred to the Retired Reserve on 3 September 2009 after completing more than 21 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's last day in an active status was 3 September 2009 which was within 90 days of implementation of the program.  He, in effect, contends 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.  

3.  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 State Army National Guard and Department of the Army records of the individual concerned be corrected by showing he filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his dependent prior to his transfer to the Retired Reserve, 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)                                         AR20140010959





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ABCMR Record of Proceedings (cont)                                         AR20140010959



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