IN THE CASE OF:	  

		BOARD DATE:	    10 October 2013

		DOCKET NUMBER:  AR20130004112 


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 educational benefits to his family member under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he started his transition leave on 15 July 2009.  This was before the time frame the Department of Veterans Affairs had decided how the benefits were to be transferred to family members.  He had two back-to-back deployments and had accumulated 90 days of leave prior to his retirement on 31 October 2009.  There should have been a notification mechanism in place to notify him of the rules to transfer this benefit.  Sometime in 2010, he attempted to transfer the benefit but his family members were not listed and his children were juniors in high school at the time. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 service, the applicant was appointed as a Reserve warrant officer and entered active duty on 10 September 1987.  He served in a variety of assignments, including Iraq from January 2004 to April 2005 and March 2006 to March 2007, and he attained the rank of chief warrant officer five (CW5).  

3.  He underwent a pre-separation briefing at Fort Hood, TX, on 7 October 2008. He checked the "Yes" block in item 13a (Education/Training – Education Benefits of his DD Form 2648 (Preseparation Counseling Checklist) in anticipation of his upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

4.  On 31 October 2009, he was honorably retired and he was placed on the Retired List in the rank/grade of CW5 on 1 November 2009.  He was credited with over 27 years of active service.

5.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further, Public Law 110-252, section 3020, 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.  Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service.  A Soldier must currently be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009.  

6.  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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

7.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his educational benefits under the TEB provision prior to retirement, but he did not do so.  The program was implemented in July 2009 and he retired on 31 October 2009.  Prior to retirement, he did not apply for the transfer of benefits while serving on active duty.

2.  DOD, the VA, and the Army conducted massive public campaigns 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 several 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 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 also have been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  The applicant's retirement date was 31 October 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits 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 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 his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his family members 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)                                         AR20130004112





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ABCMR Record of Proceedings (cont)                                         AR20130004112



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