IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20140019410 


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 record to show that he transferred his Post 9-11 GI Bill education benefit to his son.

2.  The applicant states that while he was being processed for medical separation he was not informed about the transfer of education benefits (TEB) program.  He did not even know he had any educational benefit.  He was medically retired on 1 June 2010. 

3.  The applicant provides copies of a letter to the applicant from a U. S. Senator’s staff, a letter to the Senator from the Department of Veterans Affairs (VA), and a VA acknowledgement of the applicant’s application for benefits. 

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 a career Army National Guard (ARNG) Soldier.  He was mobilized, served on active duty from August 2005 to December 2006, and was released upon completion of required active duty service.

3.  An Eligibility for Mobilized Soldier (EMS) (Form) 1607 (Reserve Educational Assistance Program - EMS), signed on 5 September 2008, informed the applicant of the basic eligibility criteria for Soldiers mobilized under Title 10, U.S. Code.  It shows that the extent of the entitlement is based on the length of a period of consecutive active duty service.  It further stated that if a Soldier were separated due to disability, not by willful misconduct, on or after the date of entitlement he or she would have up to 10 years to use that benefit. 

4.  His ARNG Current Annual Statement, dated June 2010, shows that during the period February 2009 to February 2010 he attended 32 unit training assemblies and had 15 days of active duty.

5.  On 1 June 2010, the applicant was released from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired) due medical unfitness for retention.

6.  A 4 June 2010 letter informed the applicant of his Eligibility for Retired Pay at age 60 (Selected Reserve 15-Year Letter). 

7.  Department of Defense Instruction 1341.13, subject:  Post-9/11 GI Bill establishes policy for authorizing TEB in accordance with Title 38, U.S. Code, section 3319.  It states:
   
   a.  The Secretary concerned, to promote recruitment and retention in the Uniformed Services, may permit an individual eligible for Post-9/11 GI Bill educational assistance to elect to transfer to one or more of his or her family members all or a portion of his or her entitlement to such assistance. 
   
   b.  Any Service member on or after 1 August 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request for TEB under this section, may transfer that entitlement provided he or she meets one of these conditions:
   
   	(1)  Has at least 6 years of service in the Military Services (active duty or Selected Reserve), on the date of approval and agrees to serve 4 additional years from the date of election. 
   
   	(2)  Has at least 10 years of service in the Military Services (active duty or Selected Reserve), is precluded by either standard policy or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute. 
   
   	(3)  Is or becomes retirement eligible during the period from 1 August 2009 through 31 July 2012.  (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).
   
8.  When the TEB program was initiated in 2009, the Army, DOD, and VA initiated a public information campaign that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and the TEB.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows that the applicant was eligible to transfer his educational benefits under the Post-9/11 GI Bill transferability program prior to his retirement.  

2.  The evidence of record shows he had been informed by a document signed on 5 September 2008 of his eligibility for GI Bill education benefits.

3.  The Department of the Army, Department of Defense, and the VA initiated a publicity campaign plan 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 and his retirement date of 1 June 2010.  

4.  His annual retirement points statement indicates he was an active ARNG member when the TEB transfer program came into existence; thus he would have had sufficient opportunity to learn of the requirements.

5.  Unfortunately, there is no basis for granting 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)                                         AR20140019286



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140019410



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1