BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20130000152 


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 an exception to policy to transfer her educational benefits to her family members under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill. 

2.  The applicant states when the transfer of educational benefits to family members was being briefed she was outprocessing and she was not properly briefed about the requirements for the program.  She found the correct procedures while reading an online article.  

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty), Enlisted Record Brief (ERB), and retirement orders.

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.  The applicant enlisted in the Regular Army on 16 August 1989.  She served through multiple reenlistments in a variety of stateside and/or overseas assignments.

3.  On 31 August 2009, she retired and she was placed on the Retired List in the rank/pay grade of sergeant first class/E-7 on 1 September 2009.  She was credited with 20 years and 15 days of creditable active service.

4.  Her available records show she was assigned to the 52nd Signal Command in Germany prior to retirement.  Her ERB shows she was divorced but had one dependent and her retirement orders listed her dependent as her daughter (Reyxx) (born on XX April 1995). 

5.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, § 3020 Public Law 110-252, limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  Based on the details below, administrative relief for the applicant should be granted because he left service during the first 90 days of the implementation of the program. 

6.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states 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:

	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.  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 available evidence shows the applicant was fully eligible to transfer her educational benefits under the TEB provision of the Post-9/11 GI Bill prior to retirement but did not do so.  The program was implemented in July 2009.  The applicant retired on 31 August 2009.  Prior to retirement, she did not apply for transfer of benefits while serving on active duty.

2.  The Army, DOD, and the VA conducted a massive public campaign 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.  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's retirement date was 31 August 2009.  It is reasonable to presume that had she been aware of the procedure to transfer her benefits while in an active duty status she would have done so.  Therefore, as a matter of equity, her records should be corrected to show she did so in a timely manner prior to her 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 her application and the Army approved her request to transfer Post-9/11 GI Bill benefits to her family members prior to her 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)                                         AR20130000152



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ABCMR Record of Proceedings (cont)                                         AR20130000152



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