IN THE CASE OF:	  

		BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20120022902 


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 transfer of his educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his daughters.

2.  The applicant states:

	a.  He retired on 27 September 2009.  He did not know that the Post-9/11 GI Bill transfer had to be approved while a member of the Armed Forces.  His eldest son was the only dependent in college at the time.  Both of his daughters were still in high school.  He unknowingly did not list them on the TEB site and he has been unable to transfer his education benefits to them.  

	b.  At the time of his retirement, there was no readily available knowledge that all dependents eligible for the transfer of educational benefits had to be listed on the TEB site in order to transfer the benefits to them after retirement.  He wrote to the Army soon after he retired to have this addressed.  He wants to distribute this benefit to his children equally and not have one of them denied educational benefits due to this oversight.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two pages of a Defense Enrollment Eligibility Reporting System (DEERS) family coverage printout.




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.  Having had prior enlisted service, the applicant's records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) and he executed an oath of office on 5 July 1985.  He attained the rank of lieutenant colonel (LTC) on 30 December 2005.  

3.  On 11 December 2006, he entered active duty as a member of his USAR unit. He was honorably retired on 27 September 2009, in the rank of LTC, by reason of permanent disability and he was transferred to the Retired Reserve.  He completed 2 years, 9 months, and 17 days of net active service during this period of service and he had 20 years, 8 months, and 29 days of prior inactive service.

4.  A review of the TEB database confirms that on 22 July 2009 the applicant transferred 20 months of his education benefits to his child, DAH, with a transfer begin date of 1 August 2009.  At that time, he had three other dependents who were eligible to receive his educational benefits, his spouse and two additional children.

5.  When he submitted his request to transfer 20 months of benefits to DAH, he acknowledged that he understood he could transfer up to 36 months (or his remaining months of eligibility) of his education benefits to his spouse and/or children, and could modify or revoke his election at any time.  He also acknowledged that he understood his spouse could use the benefit immediately and children (ages 18-26) after he had served 10 years.

6.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible family member is 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 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 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.

7.  A member of the Armed Forces is eligible to transfer education benefits to family members if they:

	a.  have eligible family members enrolled in the DEERS.  Children lose eligible family member status upon turning 21 years of age, or at marriage.  Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried; and

	b.  initially requests the transfer through the DOD TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the VA.  Once the benefits are transferred, children may use the benefit up to the age of 26.

8.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his education benefits to all three of his children and his spouse under the TEB provision of the Post-9/11 GI Bill prior to retirement but he only transferred benefits to one child.  The program was implemented in July 2009.  He retired on 27 September 2009.  
2.  The DOD, 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 well in advance with emphasis on the criteria.  A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent.

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 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.  It is reasonable to presume that on 22 July 2009 when he transferred benefits to one of his children had he been aware that he needed to transfer a portion of his benefits to each of his children prior to his retirement on 27 September 2009 in order to make changes later he would have done so.

5.  In view of the foregoing and 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 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 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)                                         AR20120022902



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ABCMR Record of Proceedings (cont)                                         AR20120022902



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