IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150006347 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 transferred his Post-9/11 Montgomery GI Bill benefits to his youngest daughter. 2. The applicant states: a. Prior to his final deployment to Afghanistan in 2009, he transferred his education benefits to his daughters as soon as that option was made available. b. He is now being told that prior to his retirement, he was supposed to have allocated benefits to his youngest daughter, who is now listed as “ineligible” for the benefit. c. When he transferred his education benefits, no one in his chain of command, including the retirement services and the education center, knew anything about how the program ran. d. No one ever mentioned assigning benefits prior to retirement. e. Information about the transfer of education benefits (TEB) was not available to him immediately after it was approved or during deployment immediately prior to his retirement. f. Once his TEB paperwork was approved, according to the information available at the time, his benefits were transferred to his dependents. g. Now that he is retired, he is finding out that the second half of his benefits is unavailable for his daughter to use because he did not do something that nobody knew to be done. He is now requesting that she be allowed to utilize his remaining Post-9/11 Montgomery GI Bill benefits. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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. On 17 September 2009, the applicant submitted his TEB request for one daughter for 36 months and the other daughter for 0 months. The application was approved. 3. On 31 May 2011, the applicant retired in the rank/grade of sergeant first class (SFC)/E-7 after completing 23 years, 6 months and 6 days of active service. His DD Form 214 shows in item 18 (Remarks) that he served in Afghanistan from 6 November 2009 to 4 November 2010. 4. A DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), under Section IV, item 13 (Education/Training), dated 4 February 2011, shows he received counseling on education benefits. 5. On 22 June 2009, Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 Montgomery 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. 6. The policy further states the Secretaries of the Military Departments will provide counseling on the benefits under the Post-9/11 Montgomery GI Bill to active duty participants and members of the Reserve Components with qualifying active duty service prior to separation or release from active duty, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant submitted his TEB request on 17 September 2009 for his daughter for 36 months. The request was approved. 2. The applicant retired on 31 May 2011. However, since his retirement was within 90 days of the implementation of the program authorizing transfer of Post-9/11 Montgomery GI Bill benefits, the program was new and it appears that commands and education offices did not yet fully understand the correct method to transfer education benefits to dependents. 3. He cleared his final installation long after he was approved for the TEB. Therefore, it appears that the applicant had no reason for revisiting the TEB election he had already made in 2009. 4. In view of the available evidence, it would be appropriate to correct his records to show he submitted a timely request to transfer his Post-9/11 GI Bill benefits to both of his children prior to his retirement. BOARD VOTE: ___X_____ __X_____ ____X_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 Montgomery GI Bill benefits to both of his daughters prior to his retirement provided all other program 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) AR20120003969 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006347 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1