IN THE CASE OF:	   

		BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20150001064 


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 to transfer his Post-9/11 GI Bill education benefits to his family members before he retired on 31 October 2009.

2.  The applicant states that during the period he was undergoing his retirement transitioning, the education counselor was not familiar with how to effect the transfer of education benefits to his family members.  During out-processing he accessed the Department of Veteran Affairs (VA) site and attempted to make the transfer on his own and it was not until later that he learned that he had completed the wrong forms and that he had to be on active duty in order to effect the transfer.

3.  The applicant provides a one-page letter explaining his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a copy of VA Form 22-1990E (Application for Family Members to Use Transferred 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 enlisted in the Regular Army on 26 October 1989.  He completed his training as an airborne infantryman and remained on active duty through a series of continuous reenlistments.  He deployed to Iraq and was promoted to the rank of master sergeant (MSG)/pay grade of E-8 on 1 April 2007.

3.  On 31 October 2009 the applicant was retired by reason of length of service at the U. S. Military Academy at West Point, New York.  He had served 20 years and 5 days of active service.

4.  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 education 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 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 family members.  A Soldier 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, there is no additional service required;

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

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

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

   e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 incur 3 years of additional service; 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 of education benefits to family members.

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 Department of Veterans Affairs initiated a public campaign plan that generated 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 applicant's request that his record be corrected to show he applied for and the Army approved transferring his education benefits under the Post-9/11 GI Bill to his eligible family members prior to retirement on 31 October 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.  As confirmed in the U.S. Army Human Resources Command correspondence, specific guidance pertaining to the requirement to apply for the benefits 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.  The evidence of record confirms the applicant retired on 31 October 2009 within 90 days of implementation of the program.  In view of the fact that transfer application procedures were not fully implemented at the time he retired, it would serve the interests of equity and justice to correct his records to show he applied to transfer his educational benefits to his eligible family members under the Post-9/11 GI Bill transferability provision upon program implementation while he was still serving on active duty.

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 he applied to transfer his education benefits to his eligible dependents under the Post-9/11 GI Bill transferability provision upon program implementation while he was still serving on active duty and the Army approved his application in a timely manner.



      _______ _   _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)                                         AR20150001064



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ABCMR Record of Proceedings (cont)                                         AR20150001064



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