IN THE CASE OF:	  

		BOARD DATE:	  18 August 2015

		DOCKET NUMBER:  AR20140020267 


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 elected to transfer his educational benefits to his dependents under the Post-9/11 GI Bill transferability provision.

2.  The applicant states:

	a.  He retired from the Army under the belief he was approved to transfer his GI Bill benefits to his daughter.  The advice and assistance he was given regarding this matter was not accurate.  

	b.  He already had his approved retirement orders in hand by the time (August 2010) he requested to transfer his GI Bill benefits.  He questions why the counselor continued to assist him in submitting the request to transfer benefits if he knew there was an additional 2-year service obligation even after he informed the counselor of his 31 October 2010 retirement date.

	c.  During the months preceding his retirement in October 2010, the Post-9/11 GI Bill was newly introduced with the ability to transfer unused benefits to family members.  It was in the beginning stages and there was a lot of confusion regarding the rules and requirements for eligibility to transfer benefits.

	d.  In March 2010, his retirement was approved and he received his retirement orders.  Later that summer, in August 2010, he transferred the 
Post-9/11 GI Bill benefits to his family members.  His counselor assisted him via telephone in filling out the required forms.  He asked several times about any additional service obligation that may be required and he was assured the additional service time did not apply to him due to his serving 20 years.  He was told the additional obligation time was for Soldiers not eligible to retire.

	e.  Once the online application showed his request was approved, the counselor confirmed to him again that he was good to go.  After his daughter was denied benefits by the Department of Veterans Affairs (VA), he called the Department of the Army transfer of benefits hotline to inquire.  The representative told him that during 2010 the rules were constantly changing regarding the Post-9/11 GI Bill and there was only a small handful of individuals properly trained on these new policies.  His counselor was advising him as to how he interpreted the rules and policies, which turned out to be wrong.

3.  The applicant provides:

* DD Form 214
* Department of Defense (DOD) Manpower Data Center printout, dated 1 February 2011
* VA Certificate of Eligibility, dated 6 August 2014

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 provided documentation that shows he submitted a request to transfer his educational benefits to his dependents on 4 August 2010.  His request was approved and his obligation ending date is shown as 4 August 2012.

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

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

5.  He provided a VA Certificate of Eligibility, dated 6 August 2014, which shows his daughter was entitled to benefits under the Post-9/11 GI Bill.

6.  On 22 June 2009, the 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 August 2010 was approved and he was assigned a service obligation ending date of 4 August 2012.  However, he voluntarily retired on 31 October 2010 prior to fulfilling his service obligation.

2.  There is no evidence indicating he was not given proper guidance regarding his service obligation ending date.

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

4.  Based on the foregoing, 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 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)                                         AR20140020267



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ABCMR Record of Proceedings (cont)                                         AR20140020267



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