IN THE CASE OF:	  

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20140015681 


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, an exception to policy to transfer his Post-9/11 GI Bill education benefits to his dependents.

2.  The applicant states:

   a.  He had an approved retirement date of 31 August 2009, prior to signing out on terminal leave in June 2009.  He was not given the opportunity to transfer his education benefits.  He was advised that since the program had not been approved yet, he would have to request an exception to policy if the program was approved to transfer these benefits on 1 August 2009.  He has telephoned the Department of Veterans Affairs' education benefits and numerous other agencies for assistance and he received none.  On 30 July 2014, he was advised that he had to contact the Army Review Boards Agency.

   b.  He believes the Board should consider his request because initially this provision was not extremely clear to everyone during the transition process.  He would have selected this request if given the chance when he out-processed, but he never was.  He is requesting the same opportunity to transfer his benefits to his dependents like every other Soldier in his shoes has done.

3.  The applicant provides copies of the following:

* Enlisted Record Brief
* Orders Number 301-007
* Orders Number 301-008
* letter from Army Continuing Education System
* DA Form 31 (Request and Authority for Leave)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* milConnect information paper
* Transfer of Education Benefits (TEB) Waiver process for Retirees information paper

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army on 2 August 1989.  

3.  He provided copies of the following:

   a.  Orders issued by the Installation Management Command – Europe on/for:

* Orders Number 301-007, on 27 October 2008, reassigning him for separation processing with a retirement/separation date of 31 August 2009
* Orders Number 301-008, on 27 October 2008, releasing him from active duty on 31 August 2009 and placing him on the retired list on 1 September 2009

   b.  A letter, dated 21 April 2009, wherein he acknowledged that he had received counseling from a counselor with the Army Continuing Education System on Veteran's Educational Benefits.  He also stated that he had completed his full obligated enlistment and was being discharged with a fully honorable discharge.  He further acknowledged that he would receive up to 36 months of educational benefits and had 10 years from the date of his last separation from active duty to use them.

   c.  A DA Form 31, dated 30 April 2009, wherein he requested transition leave from 4 May through 31 August 2009.  His request was approved on the same date.

4.  He was honorably retired on 31 August 2009.  He was credited with completing 20 years and 29 days of active duty.  

5.  He also provided the following:

   a.  A milConnect information paper pertaining to military transitions.

   b.  A TEB Waiver process for Retirees information paper, dated 13 March 2012, which stated:

		(1)  The Department of Defense (DoD) had found that some service members who retired between 1 August and 1 November 2009 may not have known that the Post-9/11 GI Bill included the ability to transfer benefits to a spouse or dependent, or that the transfer had to be approved while a member of the Armed Forces.

		(2)  If you were in that situation, you may be exempted from the rule by filing a Correction of Military Record.  

6.  On 29 June 2009, the DoD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states 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 a 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 of DoD) or statute from committing to 4 additional years and agrees to service for the maximum amount of time allowed by such policy or stature; 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 service or 20 qualifying years of Reserve service.
7.  The policy further states the Secretaries of the Military Department will provide active duty participants and members of the Reserve Components with qualifying active service individuals pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain record for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

8.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was on approved transition leave from 4 May through 31 August 2009.  He was honorably retired on 1 September 2009 after completing more than 20 years of service.  In previous cases, the Office of the Deputy Chief of Staff, G-1, had opined that although significant measures were taken to disseminate the transferability of unused Post-9/11 GI Bill benefits many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer the benefits prior to leaving military service.

2.  The applicant's last day in an active status was 31 August 2009 which was within 90 days of implementation of the program.  He, in effect, contends he was not aware of the requirement to transfer his educational benefits prior to retirement; therefore, none of the required steps to transfer his benefits were taken.  Based on the foregoing and as a matter of equity, his records should be corrected to show he transferred his benefits to his dependents under the TEB provisions of the Post-9/11 GI Bill.

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 he 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)                                         AR20140015681



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ABCMR Record of Proceedings (cont)                                         AR20140015681



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