BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140017328 


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, amendment of his retirement date of 31 December 2010 to 7 September 2011 for Post-9/11 GI Bill transferability purposes.

2.  The applicant states, in effect:

	a.  He did not fulfill his entire military service obligation and he needs his retirement date adjusted.

	b.  He submitted a request to transfer his educational benefits before he retired in December 2010.  He received a certificate of eligibility in March 2011 showing he transferred months/benefits to his dependents.  He asked for another transfer (from one child to another) and it was approved.  When he asked to transfer a third time he was told his transfer had been rejected for failure to fulfill his entire service obligation.

	c.  When he retired on 31 December 2010 he was not aware he needed to serve an additional 8 months; had he known he would have done so.

	d.  His son will have to drop out of college if he can't transfer his remaining benefits to him.



3.  The applicant provides:

* Department of Veterans Affairs (VA) Certificate of Eligibility
* transfer of education benefits
* approval letter
* VA Form 22-1990E (VA Application for Family member to Use Transferred Benefits)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* email rejecting transfer

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.  In September 2010, the applicant provided documentation that shows he submitted a request to transfer his educational benefits to his dependents.  His request was approved on 17 September 2010 and his obligation ending date is shown as 7 September 2011.

3.  After completing over 20 years of creditable active service, the applicant voluntarily retired on 31 December 2010 in the rank of master sergeant.

4.  There is no evidence showing he completed any active duty service after 31 December 2010.

5.  He provided email from the Finance and Incentives Team, U.S. Army Human Resources Command, Fort Knox, KY, dated 22 September 2014, which states:

	a.  The Atlanta VA Regional Office sent email to that office concerning his Post-9/11 GI Bill transfer and the associated service obligation.

	b.  When he elected to transfer the Post-9/11 GI Bill to his eligible dependents, he was assigned a service obligation date of 7 September 2011; however, he retired on 31 December 2010, which was prior to fulfilling the entire obligation.

	c.  Since he did not fulfill his service obligation, his Post-9/11 GI Bill transfer request was rejected.

	d.  His dependents are not eligible to use Post-9/11 GI Bill benefits and may be subjected to recoupment by the VA if benefits have already been paid.

	e.  The Post-9/11 GI Bill is still his to use; however, his dependents are not eligible to use the benefits since the service obligation was not fulfilled.

6.  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 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.

7.  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.

8.  DOD, the Army, and the 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 educational benefits.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant's request to transfer educational benefits to his dependents in September 2010 was approved and he was assigned a service obligation end date of 7 September 2011.  However, he voluntarily retired on 31 December 2010 prior to fulfilling his service obligation.

2.  There is no evidence indicating he was not given proper guidance regarding the benefits under the Post-9/11 GI Bill or his service obligation ending date.

3.  Since he did not fulfill the service obligation associated with his Post-9/11 GI Bill, his request to transfer benefits was rejected.

4.  Since there is no evidence showing he completed any active duty service after 31 December 2010, there is no basis for changinig his retirement date.

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)                                         AR20140017328



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ABCMR Record of Proceedings (cont)                                         AR20140017328



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