BOARD DATE: 10 January 2013
DOCKET NUMBER: AR20120009928
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 allowed to transfer his educational benefits to his dependents.
2. The applicant states he was not informed that he had to complete a special request prior to retirement to allow his dependents to utilize his educational benefits. He thought he had until the time until his daughter was ready to use the benefits or 10 years after his retirement.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his discharge orders.
CONSIDERATION OF EVIDENCE:
1. The applicant retired a sergeant first class served on continuous active duty from 3 August 1989 through 30 November 2009.
2. The applicant was approved for retirement on 26 March 2009 at which time he had two qualified dependents. His retirement orders state he was approved for transition leave (TL) and permissive temporary duty (PTDY).
3. The applicant completed a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members) on 11 May 2009. It is noted he requested both an educational briefing and a Department of Veterans Affairs benefits briefing.
4. In advisory opinions of similar cases the Education Incentive Branch, U.S. Army Human Resources Command, Fort Knox, KY has recommended approval of the Soldier's request, noting that many Soldiers who left military service during the early days of the program were not fully aware of the requirement to transfer benefits prior to leaving active service.
5. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer educational benefits (TEB) 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. 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 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, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.
6. The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and agrees to serve a specified additional period, he/she is entitled to transfer benefits to his/her 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. For service members eligible for retirement on 1 August 2009 no additional service is required.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows the applicant was fully eligible to transfer his educational benefits under the TEB prior to retirement but did not do so. The TEB program was implemented on 1 August 2009. The applicant was approved for retirement on 26 March 2009, had his preseparation briefings in May 2009, and retired on 30 November 2009.
2. The DOD, the VA, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues. The information was published in advance with emphasis on the criteria and that a Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent.
3. Nevertheless, during the initial implementation of this new program, many Soldiers in all grades were confused regarding their eligibility and/or the procedure to apply for such benefits. This confusion was exacerbated with heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program implementation. Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.
4. The applicant received his retirement briefings 3 months prior to the commencement date of the TEB. He is also shown to have been granted TL and PTDY in conjunction with his separation on 30 November 2009. It is reasonable to presume that he did not receive a full briefing on the TEB prior to its implementation and that he took advantage of the TL and PTDY within 90 days of the implementation of the TEB.
5. It is reasonable to presume that had he been aware of the full procedure to transfer his benefits while still in an active status he would have done so. Therefore, as a matter of equity, his records should be corrected to show he did so in a timely manner prior to his effective date of 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 GI Bill benefits to his daughter 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) AR20120009928
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ABCMR Record of Proceedings (cont) AR20120009928
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