IN THE CASE OF:
BOARD DATE: 19 March 2015
DOCKET NUMBER: AR20140011764
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 correction of his records to transfer his education benefits to his spouse and dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states that:
* he was not aware until recently that the Post 9/11 GI Bill included the ability to transfer benefits to his spouse and dependent
* he was not aware that the transfer had to be approved while he was still a member of the Armed Forces
* as a Reservist, he did not receive any Department of Veterans Affairs (VA) counseling from his command prior to his retirement
3. The applicant submitted:
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* his VA Certificate of Eligibility
* Orders PO4-905009, dated 22 April 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 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 applicant served in the Regular Army, Army National Guard, and U.S. Army Reserve (USAR). On 27 October 2009, he was placed on the Army of the United States (AUS) Retired List. A review of his record shows that prior to being placed on the AUS Retired List he had been serving as a member of a USAR unit. He completed 33 years, 11 months, and 29 days of service qualifying for non-regular retirement.
3. He submitted, in part, a Certificate of Eligibility, dated 17 April 2013, which states he is entitled to benefits for an approved program of education or training under the Post 9/11 GI Bill.
4. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states any member of the Armed Forces on or after 1 August 2009 may transfer benefits if, at the time of the approval of the request to transfer entitlement to educational assistance under this section, the member 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.)
5. The Army, DOD, and VA initiated a massive public campaign that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and transfer of education benefits. However, during the first 90 days of the program, many Soldiers did not receive information on the requirements of the program.
DISCUSSION AND CONCLUSIONS:
The evidence of record shows the applicant was placed on the AUS Retired List on 27 October 2009 after completing over 30 years of service qualifying for retired pay. He retired within 90 days of implementation of the program authorizing transfer of Post-9/11 GI Bill benefits. Because he retired before information on the requirements of the program had been thoroughly disseminated, it would be appropriate to correct his record to show he submitted a timely request to transfer his Post-9/11 GI Bill benefits to his dependents prior to his retirement as recommended below.
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 dependents 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) AR20140011764
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ABCMR Record of Proceedings (cont) AR20140011764
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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