IN THE CASE OF: BOARD DATE: 24 February 2015 DOCKET NUMBER: AR20140010873 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, in effect: a. In 2010, during his retirement process at Fort Drum, NY he did everything he was told concerning the transfer of 1 month of Post-9/11 GI Bill benefits to each of his two children. However, he was recently informed by both the Department of Veterans Affairs (VA) and the Army that there is no record of him making such an election. Unfortunately, he has no record either. b. In the summer of 2010 his children were in middle school, he and his wife already had bachelor degrees, and he was retiring from the Army and had good job prospects. During the retirement process it was explained that the Post-9/11 Veterans Educational Assistance Act of 2008 was written with the intention that the services use the benefit transfer option as a retention and recruitment tool. However, in implementing the program, the Department of Defense (DOD) decided to prorate any service remaining requirement for service members who were retirement eligible during the first 3 years of implementation. Based on that decision, he fell in the category of those not required to give any additional service as he already was retirement eligible when the program began on 1 August 2009. c. He was also told that in order for his children to be eligible for any benefits, he would need to transfer at least 1 month of GI Bill benefits to each before he retired. Given those circumstances, it was an easy choice to decide to transfer his GI Bill benefits to his children. He followed the guidance he received, did everything he believed was required to transfer 1 month of benefits to each of his two children, and retired confident that 4 years later he would be able to rely on the GI Bill to help fund his children's education. d. In June 2014, he was told the VA had no record of a benefit transfer election. e. He fully intended to and thought he had transferred the benefits. In his case, he had no additional service requirement and would gain no un-entitled benefit from a correction of his records. At the same time, a decision in his favor would not cost the government any additional monies than already obligated for his Post-9/11 GI Bill benefits. He realizes this case is completely circumstantial and that neither he nor the Army can produce any record proving or disproving his claim. 3. The applicant provides: * retirement orders * DD Form 214 (Certificate of Release or Discharge from Active Duty) * email correspondence from the Human Resources Command * DOD documentation regarding the GI Bill * diploma * degree certificate 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 22 years of creditable active service, the applicant retired on 31 October 2010 in the rank of first sergeant. 3. There is no evidence that shows he elected to transfer his Post-9/11 GI Bill benefits to his dependents prior to retirement. 4. On 22 June 2009, 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. 5. 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. 6. 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: Although the applicant contends he transferred 1 month of Post-9/11 GI Bill benefits to each of his two children, there is no evidence of record and he provided no evidence which shows he elected to transfer his Post-9/11 GI Bill benefits to his dependents prior to retirement. Regrettably, 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) AR20140010873 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140010873 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1