IN THE CASE OF:	  

		BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130002581 


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

2.  The applicant states he was able to transfer some of his benefits to his son so he could attend school.  He was unaware of the requirement to also transfer at least 1 month to each of his other dependents prior to leaving active duty.  At the time of his retirement, he was not assigned to a normal duty station and the information about policy changes was not readily available.  He states he has identified that the benefits he transferred to his son in October 2009 were revoked on 23 January 2013.  He is not sure who put that revocation on the record, but he did not revoke his son's benefits.

3.  The applicant provides no additional evidence in support of his application.

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 28 September 2009, he was retired and placed on the Temporary Disability Retired List (TDRL) the following day.  He had completed 14 years and 26 days of active service and 23 years, 10 months, and 14 days of service for basic pay.

3.  According to the U.S. Army Human Resources Command (HRC), the applicant transferred 7 months of benefits to his son on 20 October 2009.  HRC's records show the applicant changed his son's months to "0" on 23 January 2012.

4.  He did not complete the requirements in the TEB online database for his three daughters because he stated he was not aware of the requirement to transfer months to specific dependents prior to leaving the service.

5.  On 7 May 2012 he was removed from the TDRL and placed on the Retired List by reason of permanent disability.

6.  DOD Directive-Type Memorandum (DTM) 09-003, dated 22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  

	a.  Eligible individuals include a member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of their request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill, and is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013 and agrees to serve any specified additional period of service.  For those individuals who had an approved retirement date after 
1 August 2009 and before 1 July 2010, no additional service was required.  	

	b.  An individual transferring an entitlement to educational assistance under this section shall:

* Designate the dependent or dependents to whom such entitlement is
being transferred
* Designate the number of months of such entitlement to be transferred
to each dependent

	c.  An individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement to the individual's family member only while serving as a member of the Armed Forces.
	d.  An individual may add new dependents, modify the number of months of the transferred entitlement for existing dependents, or revoke transfer of entitlement while serving in the Armed Forces.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was fully eligible to transfer his education benefits under the TEB prior to retirement.  However, he only transferred 7 months of benefits to his son.  He contends he was unaware of the requirement to transfer at least 1 month to each of his daughters prior to leaving active duty.  The program was implemented in July 2009.  The applicant retired on 28 September 2009.  

2.  According to DTM 09-003, dated 22 June 2009, an individual had to designate at least one month to each dependent he or she wished to transfer education benefits to.  This could only be done while the member was on active duty.  Modification of the number of months or adding additional dependents could only be done while the member was still serving in the Armed Forces.

3.  Nevertheless, 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 by 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's 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 28 September 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits to each of his dependents while in an active duty 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 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 all of his dependents prior to his 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)                                         AR20130002581



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ABCMR Record of Proceedings (cont)                                         AR20130002581



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