IN THE CASE OF: BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150013824 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 education benefits to his authorized dependents under the Post-9/11 GI Bill Transferability Program. 2. The applicant states: * he is a retired sergeant major (SGM) with a retirement date of 31 October 2009 * he is 100 percent vested in the Post-9/11 GI Bill * at the time of his retirement he was informed that he would be able to transfer his benefit to his family members, but after he retired he was informed he had to transfer his benefit prior to his retirement * he is currently using the benefit and he has approximately 15 months of Post 9/11 GI Bill benefit remaining * he has 9 months remaining in his Master's program * he has recently been made aware that the Army was granting exceptions to policy for service members separating or retiring during the period 1 August 2009 through 31 October 2009 * his daughter has recently been accepted into her Master's Program and he is interested in transferring the balance of his benefit to her after he completes his Master's Program 3. The applicant provides: * Department of Veterans Affairs (VA) Letter, dated 3 August 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 October 2009 * AHRC-PL-M-MS Orders A-10-626764, dated 23 October 2006 * AHRC-PL-MS Orders A-10-720453, dated 9 October 2007 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 24 October 2007 * Orders 297-029, dated 24 October 2007 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. After completing over 30 years of total service for retired pay, the applicant was released from the Army on 31 October 2009 and placed on the retired list effective 1 November 2009 in the rank of SGM. 3. During the processing of this case, an advisory opinion was obtained from the United States Army Human Resources Command (HRC), recommending administrative relief based on the details below because the applicant left the service within 90 days of the implementation of the program. a. He was retired on 31 October 2009 which was within 90 days after the implementation of the Post-9/11 GI Bill. He had more than 20 years of service prior to retirement; therefore, he would not have incurred an additional service obligation. b. The transfer of education benefits (TEB) online database shows he had three eligible dependents at the time of his retirement: his spouse and two children enrolled in the Defense Enrollment Eligibility Reporting Systems (DEERS). As a result he was eligible to transfer his benefits to his children or his spouse (if he completed the request before leaving the military). c. The TEB website shows no action was taken by the applicant to transfer any benefits. However, he claims he did not complete the requirements in the TEB online database because he was not aware of the requirement to transfer his benefits prior to leaving the military. 4. The advisory opinion states that if relief is granted in the applicant's case it is requested that his DEERS record be corrected to reflect his daughter as an eligible dependent so they (HRC) may correct her record in the TEB website (DEERS feeds dependent data in the TEB website). In the advisory opinion it is noted that the applicant's daughter reached her 26th birthday and is no longer considered eligible to use the Post-9/11 GI Bill education benefits per Public Law 110-252. Therefore, the VA may determine she is no longer eligible to use the benefits. HRC requests that the ABCMR gain VA approval for the applicant's daughter to use his Post-9/11 GI Bill benefit. 5. On 5 October 2015, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not submit a written response. However, he called the Director, Case Management Division and he stated he was aware of the HRC advisory opinion and because of that, he would not be sending a rebuttal for his upcoming Board. 6. 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. 7. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members. A service member may execute 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. The general eligibility criteria are as follows: a. Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active service. b. Service members also must have served on active duty in the Regular Army; 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 service. 8. The program guidance stipulates 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, the service member is entitled to transfer benefits to his 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 required; b. service members who have an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service 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; and e. service members eligible for retirement on or after 1 August 2011, and before 1 August 2012 - 3 years of additional service is required. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his records should be corrected to show he applied for and was approved to transfer his Post-9/11 GI Bill benefits to his eligible dependent daughter prior to retirement on 31 October 2009, based on a lack of information being available, has been carefully considered and found to have merit. 2. The available evidence shows he was fully eligible to transfer his education benefits to his dependent children under the Post-9/11 GI Bill, but he contends he was not aware he needed to be on active duty to transfer the benefits to his dependents. 3. The advisory opinion recommends administrative relief because he left the service within 90 days of the implementation of the program. The applicant retired on 31 October 2009, which was within 90 days of implementation of the program. 4. The HRC's request that the ABCMR gain VA approval for the applicant's daughter to use his Post 9/11 GI Bill benefits does not fall within the purview of this Board. The applicant should petition the VA for an exception to policy to allow his daughter to use his Post-9/11 GI Bill benefits should she be denied use of that benefit by the VA. 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: a. showing the applicant filed his application and the Army approved his request to transfer his Post-9/11 GI Bill benefits to his eligible dependents prior to his retirement on 31 October 2009; and b. HRC taking action to update his records to reflect his daughter as an eligible dependent to use his Post-9/11 GI Bill benefits. _______ _ _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) AR20150013824 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150013824 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1