IN THE CASE OF:	 

		BOARD DATE:	   30 May 2013

		DOCKET NUMBER:  AR20120020978


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 made a timely application, prior to his effective date of retirement, to transfer his unused education benefits to his eligible dependents, in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.  

2.  The applicant states at the time of his retirement the educational department did not know how the transfer system would work, nor were they aware of the required paperwork to be completed.  He was told he had qualified to transfer his education benefits.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 93 (Record of Emergency Data), and DA Form 4037 (Officer Record Brief).

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 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 1 October 1992, after prior enlisted service, the applicant was appointed as a Reserve warrant officer of the Army, in the rank/grade of warrant officer one. He served in military occupational specialties 153B (UH-1 Pilot) and 153D
(UH-60 Pilot), in a variety of stateside, overseas, and combat assignments.  He attained the rank/grade of chief warrant officer four (CW4)/W-4.

3.  On 8 October 2008, he underwent pre-separation counseling, wherein he checked the "Yes" block in item 13a (Education/Training – Educational Benefits) of his DD Form 2648 (Preseparation Counseling Checklist for Active Component Members) in anticipation of his upcoming retirement.  Items that contain a "Yes" checkmark represent those services and benefits for which the separating service member (or spouse) desires further information or counseling.

4.  Orders 204-0500, issued by Headquarters, U.S. Army Garrison, Fort Rucker, AL, dated 22 July 2008, as amended by Orders 146-0500, issued by Headquarters, U.S. Army Garrison, Fort Rucker, AL, dated 26 May 2009, ordered his retirement from active duty, effective 31 August 2009, with placement on the Retired List the following day.

5.  On 31 August 2009, he was honorably retired by reason of sufficient service for retirement.  On 1 September 2009, he was placed on the Retired List in the rank/grade of CW4/W-4.  

6.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her 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 from 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.

7.  DOD policy further states the Secretaries of the Military Departments will provide active duty participants individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

8.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to allow him to transfer his unused Post-9/11 GI Bill education benefits to his dependents, under the TEB provisions of the Post-9/11 GI Bill.

2.  The program was implemented on 1 August 2009.  The Army, DOD, and VA conducted a massive public information campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  Soldiers needed to meet two criteria to qualify to transfer their unused education benefits to an eligible dependent:  (a) they must be on active duty or a member of the Selected Reserve at the time of the transfer (provided they do not have an adverse action flag); and (b) they must have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of request, unless retirement eligible.

3.  During the initial implementation phase of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the necessary procedures one must follow when applying to transfer their unused education benefits.  This confusion was exacerbated by heavy use of the DOD website and the lack of proper log-in credentials for those who had signed out on transition leave within 90 days of the program implementation, as well as by a lack of familiarity with TEB provision policies by education centers and separation counselors.  HRC acknowledges that Soldiers who retired during the implementation phase may not have had the necessary information to properly transfer their unused education benefits.
4.  The evidence shows the applicant was fully eligible to transfer his unused education benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement date of 31 August 2009.  Given the initial uncertainty regarding the program during its infancy, it is not improbable that he lacked the complete information necessary to make a proper election with respect to transferring his unused education benefits.   

5.  It is reasonable to conclude that had he known of the proper procedures to follow to successfully transfer his unused education benefits, he would have complied with them prior to his retirement on 1 September 2009.  Therefore, as a matter of equity, his records should be corrected to show he made a timely application to transfer at least 1 month of his unused education benefits to his eligible dependents, in accordance with the TEB provisions of the Post-9/11 GI Bill, 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 and the Army approved, in a timely manner, his application to transfer his unused education benefits to his eligible dependents, in accordance with the TEB provision of the Post-9/11 GI Bill, prior to his effective date of 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)                                         AR20100025000



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ABCMR Record of Proceedings (cont)                                         AR20120020978



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