IN THE CASE OF:
BOARD DATE: 31 March 2015
DOCKET NUMBER: AR20140013226
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 show he elected transfer of his education benefits to his dependents under the Post-9/11 GI Bill transferability provision.
2. The applicant states:
a. The U.S. Army Human Resources Command (HRC) denied his request to transfer education benefits to a family member.
b. Post-9/11 GI Bill regulations have changed since his retirement.
c. He had retirement orders issued on 5 June 2009 and he retired on 1 February 2010.
d. Directive-Type Memorandum (DTM) 09-003, dated 22 June 2009, subject: Post-9/11 GI Bill, from the Office of the Under Secretary of Defense states in paragraph 3b, "for those individuals who have an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service is required." This is in reference to transferability of unused education benefits to family members.
e. He is trying to transfer his benefits to a family member and HRC will not allow it because the rules now state he would have had to complete 1 more year of service.
3. The applicant provides:
* DTM 09-003, dated 22 June 2009
* retirement orders
* American Forces Press Service news article pertaining to Post-9/11 GI Bill transfers
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. After completing over 20 years of creditable active service, the applicant retired on 31 January 2010 in the rank of sergeant first class.
3. There is no evidence of record which shows he transferred his Post-9/11 GI Bill education benefits to his dependents prior to his retirement.
4. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility for transfer of unused education benefits to eligible family members. The 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, 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 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.
6. 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 education benefits.
DISCUSSION AND CONCLUSIONS:
Although Post-9/11 GI Bill policies have changed since the applicant's retirement in 2010, there is no evidence of record which shows he elected to transfer his Post-9/11 GI Bill benefits to his dependents prior to his retirement. 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) AR20140013226
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ABCMR Record of Proceedings (cont) AR20140013226
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