IN THE CASE OF:
BOARD DATE: 14 April 2015
DOCKET NUMBER: AR20140012561
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 approval of the transfer of education benefits to his daughter under the transfer of educational benefits (TEB) provision of the Post 9/11 GI Bill prior to retirement.
2. The applicant states he was not aware of the rules and regulation for transferring benefits to his dependents. He states that "Chapter 33" did not exist until August 2009.
3. The applicant provides VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim) and 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 applicant was issued his Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter) on 10 July 2002.
3. With 21 years, 8 months, and 17 days of total prior inactive service and 4 years, 6 months and 22 days of total prior active service the applicant, a member of the U.S. Army Reserve (USAR), was ordered to active duty, effective 14 September 2008.
4. He was released from active duty on 28 August 2009 and he was assigned to the USAR Control Group (Reinforcement).
5. The applicant released from the USAR Control Group (Reinforcement) and he was assigned to the Retired Reserve on 30 December 2009, in the rank of lieutenant colonel/O-5.
6. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he was not advised that he needed to apply for transfer of his Post 9/11 GI Bill Benefits while he was on active duty.
2. The evidence of record shows the applicant was released from active duty on 28 August 2009, which was within the 90-day window of the initial phase of implementation of the program. At that time, he was eligible to transfer his benefits to his dependent daughter. Once he was assigned to the USAR Control Group (Reinforcement) he was no longer eligible to transfer his benefits because he was not a member of the Selected Reserve.
3. The applicant was released from active duty within 30 days of implementation of the program. It is more likely than not that if he had access to the laws pertaining to the transfer of his Post 9/11 GI Bill Benefits and had been properly briefed regarding the program while he was on active duty he would have requested transfer of his benefits prior to his release from active duty.
4. In view of the available evidence and, as a matter of equity, 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 dependent daughter prior to retirement.
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 his Post 9/11 GI Bill benefits to his dependent daughter 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.
ABCMR Record of Proceedings (cont) AR20140012561
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ABCMR Record of Proceedings (cont) AR20140012561
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