IN THE CASE OF:	  	

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20110024417 


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 that he be granted an exception to policy for payment of tuition under the tuition assistance program.

2.  The applicant states the reason he did not get his tuition assistance request filed on time was because he could not access his Army Knowledge Online (AKO) account due to problems with his Common Access Card (CAC) not working properly.  He made several trips over a number of months to personnel offices before being able to get his CAC and AKO properly reset in May 2011.  He reported these problems to the officer in charge of the Nebraska Army National Guard (NEARNG), Education Services Office, Captain (CPT) J. K____ and he was told how to file for an exception to policy.  He did what the CPT told him to do and he kept in contact with him during his deployment in Afghanistan.  After 6 months of no resolution, he had his chain of command contact the CPT only to find out that his request for an exception to policy had not been filed.  He believes he was lied to and treated unfairly; therefore, he should be granted the exception to policy at this point.

3.  The applicant provides copies of a request for an exception to policy for filing for tuition assistance, a tuition assistance denial letter, a request for Inspector General assistance, 24 pages of e-mail correspondence, 10 pages of documents related to the submission of his exception to policy, and a statement from CPT J. K_____. 


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Iowa ARNG, on 10 March 2008, completed training, and was awarded the military occupational specialty 31B (Military Police).  He transferred to the NEARNG on 21 August 2009.

2.  In an undated statement the applicant reports he was accepted at the University of Nebraska for the Spring 2011 semester (5 January 2011 through 6 May 2011).  In December 2010, he attempted to apply for tuition assistance and he had problems accessing his accounts with his CAC through AKO.  After making several attempts to correct his access problems his issues were finally resolved in May 2011.  He had already successfully completed his courses and he was requesting an exception to policy for payment under the tuition assistance program.

3.  Although e-mail communications indicate the applicant provided the education officer a transcript from the University of Nebraska the available evidence does not include a copy of that transcript.

4.  A May 2011 counseling statement indicates the applicant had been having problems with his CAC and AKO access and he was counseled on the need to be more active in ensuring he maintained access.

5.  On 10 July 2011, the applicant was mobilized in support of Operation Enduring Freedom.  He served in Kyrgyzstan and Afghanistan from 16 August through 17 November 2011 and he was released from active duty on 
8 December 2011. 

6.  In a 12 August 2011 letter, Lieutenant Colonel (LTC) C. S____, NEARNG Military Personnel Officer, outlined the problems the applicant had in applying for the Spring 2011 term tuition assistance.  LTC S____ stated the applicant had problems with his CAC that were not resolved for 5 months and he had been counseled on keeping his access current.  He recommended the exception to policy be granted.  

7.  On 16 November 2011, the applicant was notified his request for payment of Federal tuition assistance as an exception to policy had been denied.  He was also advised that his request was denied because his application for tuition assistance for the term 5 January - 6 May 2011 was not submitted within the same fiscal year as the schooling and Federal law precludes initiation of contracts for preceding years.


8.  In a letter, dated 29 November 2011, the Inspector General (IG) responded to the applicant's request for assistance by stating the applicant had not filed his tuition assistance request prior to the commencement of the Spring 2011 semester.  Although his exception to policy was filled in a timely manner it was not acted on in a timely fashion.  Once the fiscal year closed his request for tuition assistance could not be processed.

9.  In an undated statement, CPT J. K____ indicated the applicant's exception to policy request had been filed with her and she thought she had forwarded it for consideration but she found out, after the new fiscal year began, that she had not processed it.  She was told the payment could not be made as it was contrary to Federal law because the request for tuition assistance crossed fiscal years.  For this reason the applicant's exception to policy request was not forwarded for consideration. 

10.  The e-mail correspondence provided by the applicant is dated between August and October 2011.  An e-mail from CPT J. K___ states she had gotten behind in filing exception to policy requests and the applicant's exception to policy request was one of those that did not get filed before the end of the fiscal year.  She also stated the applicant's request could no longer be processed because the payment of tuition assistance for the preceding fiscal year was prohibited by law.  

11.  Army Regulation 621–5 (Army Continuing Education System) implements Department of Defense directive instructions, goals, policies, and responsibilities for the Army Continuing Education System.  The tuition assistance program provides financial assistance for voluntary off-duty education programs in support of a Soldier's professional and personal self-development goals.  Tuition assistance procedures include that:

	a.  a Soldiers must request tuition assistance through www.GoArmyEd.com prior to the course start date or before the school’s late registration period; 

	b.  tuition assistance is approved only for the specific course and class dates that were requested and approved through GoArmyEd; 

	c.  if there is a need to change classes or dates the Soldier must drop the original class and request new tuition assistance for the new class; and

	d.  GoArmyEd will notify the Soldier whether or not the tuition assistance is approved 90 days before the due date.  If the tuition assistance Request Authorization is approved the Soldier will be notified by email.  If the tuition assistance request is not approved, GoArmyEd will advise the Soldier of the reason and of the next steps to be taken.  

12.  Title 31 U.S. Code, subsection 1501 states a monetary obligation of the U.S. Government must be supported by documentary evidence executed before the end of the period of availability for obligation of the appropriation or fund used for specific goods to be delivered, real property to be bought or leased, or work or services to be provided.

13.  Title 31 U.S. Code, subsection 1502(a) states "The balance of an appropriation or fund limited for obligation to a definite period is available only for payment of expenses properly incurred during the period of availability or to complete contracts properly made within that period of availability and obligated consistent with section 1501 of this title.  However, the appropriation or fund is not available for expenditure for a period beyond the period otherwise authorized by law." 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be granted an exception to policy for payment of tuition under the tuition assistance program because he attempted to file for tuition assistance in December prior to the commencement of the semester in question.  However, he was precluded from completing the application due to CAC/AKO access problems that took him more than 
5 months to resolve.

2.  Notwithstanding the applicant's failure to file for tuition assistance far enough in advance of the semester commencement date the available evidence shows he experienced CAC/AKO access problems, and he filed for payment of tuition assistance based on an exception to policy in a timely manner, but it was not timely processed.  

3.  The available evidence supports that the failure to timely process the exception to policy request was due to a lack of action by the education officer and not due to the applicant.

4.  Therefore, it would be appropriate as a matter of equity to correct the applicant's records to show he submitted a request for an exception to policy that was processed and granted in a timely manner.

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 a timely request for an exception to policy for tuition assistance and that his request was processed and granted; and 

	b.  appropriately paying him for the Spring 2011 semester under the tuition assistance program.



      _______ _   _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)                                         AR20110024417



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ABCMR Record of Proceedings (cont)                                         AR20110024417



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