IN THE CASE OF:	 

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140018038 


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 G.I. Bill educational benefits to his family members.

2.  The applicant states that prior to his retirement he filled out the paperwork to transfer post 9-11 GI Bill benefits to his dependents; however, the paperwork is not in his records and he cannot transfer his benefits because he is retired. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 in the rank of major at Fort Bragg, North Carolina when he was retired on 31 January 2011 due to sufficient service for retirement.  He had served 21 years and 3 months of active service. 

3.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives 2642.  In July of 2008, Congress passed a law for the Post-9/11 GI Bill that went into effect on 1 August 2009.

4.  Public Law 110-252 and Department of the Army, G1 Post 9/11 GI Bill Policy, dated 10 July 2009, provides that a veteran may modify entitlements or revoke entitlements among only those dependents that were designated to receive transferred benefits prior to separating from the Armed Forces.  Veterans who transferred entitlements prior to separation or retirement from the Armed Forces may not add new family members after separation or retirement. 

5.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The Department of Veterans Affairs 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 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, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

6.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning on 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732:

	a.  service members eligible for retirement on 1 August 2009 – no additional service required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

	d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required; and

	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required.

DISCUSSION AND CONCLUSIONS:

1.  The laws and policies governing the TEB provide that service members must make a TEB election prior to separation from the service.  Service members must make the changes using the Transfer of Education Benefits (TEB) website.  Officials at installation educations centers are trained to assist members in accomplishing such transfers.

2.  The Post-9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level.  Specific guidance on the requirement to apply for the benefit prior to leaving military service was not fully available to members who transitioned within the first 90 days after implementation of the program on 1 August 2009.

3.  However, the applicant retired well outside the first 90 days of implementation of the program.  

4.  Therefore, in the absence of evidence to show that he applied and his application was not processed or that he was advised that he did not have to apply to receive his TEB while he was still serving, there is an insufficient evidentiary basis for granting the applicant's requested relief.






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)                                         AR20140018038





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ABCMR Record of Proceedings (cont)                                         AR20140018038



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