IN THE CASE OF:	  

		BOARD DATE:	  18 June 2015

		DOCKET NUMBER:  AR20140018756 


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 correction of his records to show he transferred his Montgomery GI Bill (MGIB) educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to retiring from active service.

2.  The applicant states that during the period of his transition processing, he was not fully informed of the process and procedures for Soldiers to transfer their educational benefits.  He contacted the Department of Veteran Affairs (VA) about a year after he retired and was told that he was not enrolled to transfer his educational benefits to his dependents.  He was recently informed that he could apply for correction of this injustice.

3.  The applicant provides a copy of his NGB Form 22 (Report of Separation and Record of Service) and two email messages.

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.  An NGB Form 22 shows the applicant had prior honorable enlisted service in the Army National Guard (ARNG) of the United States (ARNGUS) and Louisiana ARNG (LAARNG) during the period 5 January 1977 through 20 August 1982.

3.  He was appointed as a Reserve commissioned officer in the ARNGUS in the rank of second lieutenant on 21 August 1982.  He continued to serve in the ARNGUS and LAARNG attaining the rank of colonel/pay grade O-6.

4.  An NGB Form 22 shows he was honorably separated from the ARNGUS and LAARNG on 2 August 2009 and transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve).  He had completed 26 years, 11 months, and 12 days of net service this period; 5 years, 9 months, and 4 days of prior Reserve Component service; 3 years, 9 months, and 10 days of prior active Federal service; and 36 years, 5 months, and 26 days of total service for pay.  It also shows the applicant was not available to sign the document.

5.  A "Corrected Copy" of Joint Forces Headquarters – Louisiana, Office of The Adjutant General, Camp Beauregard, Pineville, LA, Orders 219-1200, dated 
7 August 2009, separated the applicant from the ARNG effective 2 August 2009, and transferred him to the USAR Control Group (Retired Reserve).

6.  U.S. Army Human Resources Command, Fort Knox, KY, Orders C07-495724, dated 8 July 2014, placed the applicant on the Retired List, effective 10 August 2014.

7.  There is no evidence that the applicant completed a request to transfer educational benefits to any of his family members before leaving military service.

8.  There is no evidence that the applicant's family members made a previous claim to the VA for educational benefits.

9.  In support of his application the applicant provides two email messages that show:

   a.  on 20 April 2012, the National Level GI Bill Program Manager, ARNG, National Guard Bureau (NGB), informed his staff that there was confusion about transferability of Post-9/11 GI Bill educational benefits when the program was introduced.  Specifically, many Soldiers were under the impression that they could transfer their benefits at any time after separation.  He noted that the ABCMR has addressed this issue by granting relief for Soldiers who left the service between 1 August 2009 and 1 November 2009; and

   b.  on 14 October 2014, the applicant contacted the National Level GI Bill Program Manager, ARNG, NGB, concerning the VA's denial of his request to transfer his Post-9/11 GI Bill educational benefits to his dependents.  The applicant was advised to apply to the ABCMR regarding the matter.

10.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members.  The Public Law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.  Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.

11.  The Department of the Army, Department of Defense, and the VA initiated a public campaign that generated communications through military, public, and social media venues.  Information on the Post-9/11 GI Bill and subsequent transfer of entitlements was published well in advance of the implementation date of 1 August 2009.  However, many Soldiers who left service during the first 90 days of the program were not aware of the requirement to transfer their benefits prior to leaving military service.

12.  The VA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was fully eligible to transfer his educational benefits under the Post-9/11 GI Bill transferability program prior to transferring to the USAR Control Group (Retired Reserve).

	a.  He had at least 6 years of eligible service in order to transfer educational benefits to his spouse and at least 10 years of eligible service to transfer educational benefits to eligible children.  He had more than 20 years of service upon his retirement.

	b.  He was serving as a member of the Selected Reserve on 1 August 2009 and his last day of active service was 2 August 2009, which was within 90 days after the program's implementation.

   c.  He was eligible to transfer his educational benefits to his authorized dependents enrolled in the Defense Eligibility Enrollment Reporting System.

2.  The evidence of record shows the applicant was not available to sign his final NGB Form 22 on 2 August 2009.  In addition, the orders separating him from the ARNG on 2 August 2009 were not issued until 7 August 2009.  As such, he may not have been aware of the requirement to transfer his benefits prior to leaving military service on 2 August 2009.

3.  Therefore, it would be appropriate to correct his military record to show he elected to transfer benefits under the Post-9/11 GI Bill transferability program to his eligible family members prior to his retirement date.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual
concerned be corrected to show he filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his family members 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)                                         AR20140018756



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ABCMR Record of Proceedings (cont)                                         AR20140018756



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