IN THE CASE OF:	  

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140010133 


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, correction of his records to show he applied for the Post-9/11 GI Bill Transferability Program to transfer his educational benefits to his dependents before he was transferred to the Retired Reserve on 27 August 2009.
 
2.  The applicant states, in effect, that he was never given a full briefing on the GI Bill Transferability Program nor was he given a detailed retirement outbriefing.  He goes on to state that he was pulled out of a field training exercise (FTX) and was told to drive from the Joint Forces Training Center at Camp Grayling to the Joint Forces Headquarters in Lansing, Michigan where he received a 1-hour briefing and was told that he was eligible to transfer his GI Benefits to his children.  He goes on to state that he did not realize that he was not eligible to transfer his benefits until he tried to do so in 2014 and was told that he had to be in an active status to do so.  

3.  The applicant provides copies of his application for retired pay benefits, his Certificate of Eligibility for the Post-911 G.I. Bill, a letter to his Congressional Representative and the response he received.

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 born in 1949 and enlisted in the Michigan Army National Guard (MIARNG) on 19 July 1983.  He completed his training and remained in the MIARNG through a series of reenlistments.  He was promoted to pay grade E-7 on 10 March 2000.

3.  On 27 August 2009, he was honorably discharged from the MIARNG and was transferred to the Retired Reserve at the age of 60.

4.  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 which went into effect on 1 August 2009.

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 the transfer of benefits only while serving as a member of the Armed Forces.  The VA 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 qualifying 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, and 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 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 is required;

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

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

	f.  active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his record be corrected to show he applied for and the Army approved transferring his educational benefits under the Post-9/11 GI Bill to his dependents prior to his retirement on 27 August  2009 has been carefully considered and is found to have merit.

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.

3.  Although the applicant did not make his application before retirement, it is reasonable to presume that he was not informed that he had to make his transfer of educational benefits while he was still on active duty, given the close proximity of the applicant's retirement on 27 August 2009 to the effective date of the Post-9/11 GI Bill (1 August 2009) and the fact he was hastily undergoing transition retirement processing prior to the implementation date.



4.  Given the circumstances in this case, it would serve the interest of equity to correct his record to reflect he applied to transfer his educational benefits under the Post-9/11 GI Bill transferability provision upon implementation of the provision.

BOARD VOTE:

___x___  ___x____  ___x____   GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer Post-9/11 GI Bill educational benefits to his dependents prior to his retirement, provided all other 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)                                         AR20140010133



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ABCMR Record of Proceedings (cont)                                         AR20140010133



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