IN THE CASE OF:	  

		BOARD DATE:	  28 April 2015

		DOCKET NUMBER:  AR20140015382 


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 record to show he submitted a timely application to transfer his Post 9/11 GI Bill education benefits to his children.

2.  He states:

   a.  He was recently attempting to transfer his Post 9/11 GI Bill to his children but found out that they are not eligible.  The Human Resources Command (HRC) told him that they are ineligible because he did not transfer the benefits while he was in a duty status prior to retirement.  
   
   b.  This is unjust because he was not properly informed of this requirement prior to retirement.  He retired from an instructor unit which did not have many battle assemblies.  At retirement out-processing, he was told he was eligible for the Post 9/11 GI Bill.  Additionally, he was told that he did not have any other requirement to transfer his education benefits due to his 20 years of qualifying service as of 1 August 2009.
   
   c.  He had every intention of transferring the education benefits to his children since he already has a degree in civil engineering and his wife did not need the benefits since she already has a degree in sociology.
   
   d.  He has only 15 months and 17 days of full-time education benefits remaining and is entitled to 80 percent of benefits payable under this program.  He was planning of giving each of his 2 children 40 percent each, which he believed could be done at any time.  The reason that this is an issue now is because his eldest child is starting college.
   
   e.  HRC told him the only option was to enlist into a unit for 4 years in order to transfer the education benefits to his children.  He does not believe this makes economical sense.  The U.S. Army Reserve (USAR) would have to pay him for 
4 years of additional service as well as additional retirement pay for these
4 years.  When all is said and done, the USAR would have to spend approximately $32,000 of pay plus additional retirement pay, which is way more money than the government would have to pay if they granted his children the education benefit at 80 percent.

3.  He provides:

* A letter from Headquarters, 99th Regional Support Command dated 
13 January 2011
* Notification of Eligibility for Retired Pay dated 28 August 2008
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A letter from Headquarters, 80th Division (Institutional Training) dated 
26 February 2003
* Permanent Orders 33-13 dated 2 February 2004
* Orders M-04-063-008 dated 3 March 2004

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.  On 23 July 1987, the applicant enlisted in the USAR.

3.  On 28 August 2008, the applicant received his Notification of Eligibility (NOE), stating that he had sufficient time in service to retire and receive retired pay at age 60.

4.  On 31 January 2011, he was transferred to the Retired Reserve after completing approximately 22 years of service as a master sergeant/E-8.

5.  After retirement, on 16 July 2013, the applicant states he inquired with HRC about Post 9/11 GI Bill educational benefits for his children.  He states an HRC staff member informed him that a request to transfer his Post-9/11 GI Bill benefits to his eligible dependents had to be submitted through the Defense Manpower Data Center (DMDC) web application before he retired; however, it was never done.  Therefore, the request was denied.  

6.  The applicant provides orders to show he was ordered to active duty in 2003 and 2004 and a copy of his NOE.  

7.  Department of Defense (DOD) Directive-Type Memorandum 09-003, dated 22 June 2009, established the criteria for eligibility and transfer of unused Post 9/11 educational benefits to eligible family members.

	a.  Eligible individuals include members of the Armed Forces on or after 1 August 2009 who, at the time of the approval of their request to transfer entitlement to educational assistance under this section, are eligible for the Post-9/11 GI Bill, and:

	b.  have at least 6 years of service in the Armed Forces on the date of election and agree to serve 4 additional years in the Armed Forces from the date of election; or

	c.  have at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, are precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agree to serve for the maximum amount of time allowed by such policy or statute; or

	d.  were or became 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.)  For those individuals who had an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service was required.  For those individuals eligible for retirement:

* on or after 1 August 2009 and before 1 August 2010, 1 year of additional service was required
* on or after 1 August 2010 and before 1 August 2011, 2 years of additional service was required
* on or after 1 August 2011 and before 1 August 2012, 3 years of additional service was required

8.  The policy further states the Secretaries of the Military Departments will provide counseling on Post-9/11 GI Bill benefits to active duty participants and members of the Reserve Components with qualifying active duty service prior to separation or release from active duty and document accordingly.

9.  During the implementation phase of the program (the first 90 days), many Soldiers were unaware of the requirements for transferring Post-9/11 GI Bill education benefits.  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 benefits.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of his record to show he submitted a timely application through DMDC, prior to retirement, to transfer his Post 9/11 GI Bill education benefits to his dependents.

2.  Information on the Post 9/11 GI Bill was widely available when he retired years after the implementation phase had ended, and, as part of his retirement processing, he was required to receive counseling on his Post 9/11 GI Bill benefits.  He has not provided any documentary evidence indicating he was improperly counseled.  Further, there is no evidence that he followed the established procedure by submitting an application through the DMDC web application.  By the time he was transferred to the Retired Reserve, this was a well-established and well-publicized procedure.  It remains the only way to apply for transfer of education benefits.  

3.  Therefore, in the absence of evidence indicating he was unfairly deprived of the opportunity to transfer education benefits prior to being retired, there is an insufficient basis upon which to grant 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 that 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)                                         AR20130017962



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ABCMR Record of Proceedings (cont)                                         AR20140015382



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