IN THE CASE OF:  

		BOARD DATE:  22 August 2013

		DOCKET NUMBER:  AR20130001727


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, in effect, an exception to policy to transfer his education benefits to his dependent under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

* on 3 September 2009, he met with an education counselor at the Fort Hood, TX education center
* his education counselor determined he was eligible to transfer his Post-9/11 GI Bill education benefits to his dependent son
* his counselor had him sign a counseling statement and advised him that he had earned a full 36 months of education benefits and he had 10 years, following his date of separation, to either use the benefits or transfer them
* his counselor advised him to come back to the education center when his son applied for college and they would help him transfer his benefits 

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 669 (Army Continuing Education System (ACES) Record)
* a counseling statement from the Fort Hood education center, dated          3 September 2009
* Department of Veterans Affairs (VA) Form 22-1990 (Application for VA Education Benefits), dated 5 September 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.  On 22 May 1996, after prior enlisted service in the U.S. Navy and Regular Army, the applicant was appointed as a Reserve warrant officer of the Army, in the rank of warrant officer one (WO1).  He served in military occupational specialty 152HF (AH-64D Attack Pilot), in stateside and overseas assignments, and attained the rank of chief warrant officer three (CW3). 

3.  On 14 August 2009, 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 175-0127, issued by Headquarters, III Corps and Fort Hood, Fort Hood, TX, on 24 June 2009, ordered his retirement from active duty, effective    31 December 2009, and placement on the Retired List the following day.

5.  On 31 December 2009, he was honorably retired by reason of sufficient service for retirement.  On 1 January 2010, he was placed on the Retired List in the rank of CW3.

6.  His record does not contain any documentation that indicates he transferred, or attempted to transfer, his education benefits under the TEB provision of the Post-9/11 GI Bill, prior to his date of retirement.

7.  He provides a counseling statement from the Fort Hood education center, dated 3 September 2009, that shows he was counseled regarding his eligibility for education benefits under the Post-9/11 GI Bill.  This statement makes no mention of the requirements for transferring unused education benefits to eligible dependents under the TEB provisions of the Post-9/11 GI Bill.

8.  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.

9.  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.

10.  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 dependent son, under the TEB provisions of the Post-9/11 GI Bill.  He further contends he was inadequately counseled regarding transfer requirements by education center personnel.  The applicant has failed to submit evidence in support of his contentions.
2.  He was fully eligible to transfer his educational benefits prior to retirement, but did not do so.  The program was implemented in July 2009.  He was retired on 31 December 2009 and placed on the Retired List on 1 January 2010.  There is no evidence he attempted to transfer his Post-9/11 GI Bill educational benefits to any of his eligible family members while still on active duty.

3.  The Army, DOD, and VA 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.  While there may have been some confusion during the early stages after the implementation, he retired at least 5 months after the program was implemented.  There Is no evidence to show when he effectively left active duty (i.e., when he began transition leave).

4.  His service and sincerity are not in question; however, since he was on active duty for at least 5 months following the program's implementation date, he had a sufficient amount of time to submit his application and/or to verify that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  Additionally, there is no evidence in his record, and he has failed to provide evidence, that shows he was inadequately counseled regarding transfer requirements under TEB provisions of the Post-9/11 GI Bill.  There is neither an error nor an injustice in his transfer of benefits processing.  

5.  Unfortunately, there is an insufficient basis for granting the requested relief.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that relief should be granted.  The applicant was separated from active duty with instructions from the education counselor that led him to believe that when his son was ready for college the transferability benefit could be used.  He received and provided a signed education counseling form, dated   3 September 2009, which does not indicate a requirement to make the transfer decision before separation.  

2.  Therefore, 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 he filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his family members prior to his transfer to the Retired Reserve, 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.










SAMR-RB								           23 August 2013


MEMORANDUM FOR Commander, U.S. Army Human Resources Command, 1600 Spearhead Division Avenue, Department 100, Fort Knox, KY  40122-5100

SUBJECT:  Army Board for Correction of Military Records (ABCMR) Record of Proceedings for 


1.  Reference the attached ABCMR Record of Proceedings, dated 22 August 2013, wherein the Board unanimously recommended granting relief by correcting the applicant's records to show he made a timely election to transfer his education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill, prior to his date of retirement. 

2.  After reviewing the findings, conclusions, recommendation and reason for dissent from the staff's recommendation, my decision is to adopt the Board members' unanimous recommendation to grant relief.  The Board noted that the available evidence appeared to show the applicant was separated from service with insufficient counseling from his transition counselor, vis-à-vis his ability to, and timeline for, transferring his Post-9/11 GI Bill education benefits.  Consequently, the Board members concluded he was unaware of his requirement to transfer his education benefits prior to his date of retirement.  Further, the Defense Finance and Accounting Service has since verified that the applicant started transition leave on 17 October 2009, within 90 days of the program’s implementation date.  

3.  Under the authority of Title 10, U.S. Code, section 1552, the recommendation of the ABCMR is hereby approved, and I direct that all the Department of the Army records of the individual concerned be corrected as shown under Board Determination/Recommendation in the Record of Proceedings in the subject case enclosed.

4.  Request necessary administrative action be taken to effect the correction of records as indicated no later than 23 December 2013.  Further, request that the individual 
concerned and counsel, if any, as well as any Members of Congress who have shown 
interest be advised of the correction and that the ABCMR be furnished a copy of the correspondence.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl						    W.A. (Bud) Shatzer
						    Acting Deputy Assistant Secretary
						     (Army Review Boards)
CF: 
(X) AMHRR