BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120010766 


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 approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to his daughter.

2.  The applicant states, in effect, he was not aware of the administrative requirements of the program.  He met the eligibility requirements and he had intended to transfer his benefits to his daughter.  He retired from the Army National Guard on 1 October 2009.  He argues that the information provided by the Department of Defense and the Department of Veterans Affairs (VA) was confusing.  It did not make it clear that he had to request TEB prior to retirement. 

3.  The applicant provides a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 1 October 2009.

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 21 years, 6 months, and 9 days of creditable service for pay, the applicant was transferred to the Retired Reserve in the rank/grade of staff sergeant/E-6 effective 1 October 2009.

3.  During the processing of this case, an advisory opinion was obtained from the Acting Chief, Personnel Policy Division, National Guard Bureau.  The advisory, in effect, recommended granting administrative relief to the applicant because he was separated from active duty within 90 days of the Post-9/11 GI Bill Transferability Program implementation on 1 August 2009.  The advisory official acknowledged that many Soldiers who left service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving active service.  The advisory official stated:

	a.  A Soldier must be currently on active duty or a member of the Selected Reserves at the time of TEB to his/her eligible family members (on or after
1 August 2009).  The applicant's last day of service with the Army National Guard was 1 October 2009.  He contends he did not know this had to be done prior to retirement.

	b.  The applicant was eligible to participate in the program and he had family members eligible to receive those benefits.

	c.  A massive public campaign plan was initiated through military, public, and social media concerning the Post 9/111 GI Bill and subsequent transfer of educational benefits.  This was done to alleviate Soldier's confusion and to make them aware of the requirement to transfer benefits prior to leaving military service.

4.  On 5 November 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or rebuttal.  No response was received.

5.  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 2008, Congress passed a law for the Post-9/11 GI Bill that went into effect on 1 August 2009.

6.  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.  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.

7.  The program guidance stipulates that a service member who becomes retirement eligible during the period beginning 1 August 2009 through 30 June 2010 incur no additional service requirement.  A member is considered to be retirement eligible upon completion of 20 qualifying years as computed under Title 10, U.S. Code, section 12732.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military record should be corrected to show he was eligible for and he had successfully transferred his educational benefits to his daughter.  He argues that this should be done because he was not aware of the administrative requirements at the time.

2.  The applicant had over 20 qualifying years of service upon his transfer to the Retired Reserve, no additional service requirement, no evidence of any adverse action, and he would have been eligible to transfer the benefit to either his spouse or children if he had transferred it before he left the Army National Guard.

3.  During the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  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 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.  He was transferred to the Retired Reserve on 1 October 2009.  It is reasonable to presume that had he been aware of the procedure to transfer his benefits while 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.

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 showing the applicant filed his application and the Army approved his request to transfer his Post-9/11 GI Bill benefits to his eligible family members prior to his transfer to the Retired Reserve providing 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)                                         AR20120010766





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ABCMR Record of Proceedings (cont)                                         AR20120010766



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