IN THE CASE OF:    

		BOARD DATE:  16 April 2015	  

		DOCKET NUMBER:  AR20140015151 


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, granting an exception to policy that will allow him to transfer his Post-9/11 GI Bill educational benefits to his family members. 

2.  The applicant states that he was not informed prior to his retirement date that he had to complete this transfer while he was still on active duty.  He goes on to state that he thought that he had the ability to transfer his benefits at any point prior to the point they expired; otherwise, he would have completed the transfer while on active duty.     

3.  The applicant provides no additional documents with his application.

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 serving on active duty in the Idaho Army National Guard in the rank of chief warrant officer four when he was honorably retired on 30 November 2010.  He had served 24 years, 3 months and 12 days of active service.

3.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute the transfer of benefits only while serving as a member of the Armed Forces.  The Department of Veterans Affairs (VA) is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, and 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

4.  On 22 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 an eligible individual is any member of the Armed Forces on or after 1 August 2009 who, at the time of the 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, in pertinent part, 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.

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 and document accordingly.

6.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance for the administration of the program.  A Soldier must initially request to transfer benefits on the DOD's Transfer of Education Benefits (TEB) online database.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access.  The respective family member must then submit an application for VA educational benefits (VA Form 22-1990e (Application for Family Member to Use Transferred Benefits)) to request to use the benefits.

7.  The Army, DOD, and VA 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:

1.  The applicant’s contentions have been noted.  However, according to the applicable law and regulation he is not eligible to transfer benefits under the Post-9/11 GI Bill transferability program.  He retired from the Army on 30 November 2010 and there is no record of him transferring his educational benefits prior to retirement.  Unfortunately, there are no provisions in the law for retroactive eligibility that will allow him to transfer his benefits.

2.  Additionally, the Departments of the Army, Defense, and Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post-9/11 
GI Bill and subsequent transfer of entitlements was published in advance of its implementation.

3.  The applicant has provided no evidence to support his contention that he was not advised regarding his education benefits or that he was improperly advised regarding his eligibility for the Post-9/11 GI Bill Transferability Program.  Therefore, in the absence of evidence to the contrary, it must be presumed that he was properly advised or was aware of his entitlements at the time of retirement.

4.  Accordingly, there appears to be no basis to grant his request to transfer his educational benefits.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20140015151





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ABCMR Record of Proceedings (cont)                                         AR20140015151



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