IN THE CASE OF:	  

		BOARD DATE:	    7 November 2013

		DOCKET NUMBER:  AR20130004376 


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

2.  The applicant states he was not aware of the TEB provision at the time of his pending retirement.  He participated in the Army Career and Alumni Program (retirement briefings) the week of 3 March 2009.  He does not recall any counseling or discussion pertaining to the TEB at the time.  He was scheduled to transition on 25 June 2009 with 20 days of permissive temporary duty followed by 77 days of transition leave through 30 September 2009.  Due to required surgery, his transition date was amended.

3.  The applicant provides copies of his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 4037-E (Officer Record Brief)
* DD Form 93 (Record of Emergency Data)
* DA Form 31 (Request and Authority for Leave)
* DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members)
* U.S. Army Human Resources Command retirement orders with amendment orders
* Service Computation for Retirement
* three excused from work physician's statements

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, a retired Army Reserve colonel, served on active duty from 12 July 1992 through 30 September 2009.  He completed 17 years, 2 months, and 19 days of continuous active duty with 4 years, 11 months, and 26 days of prior active duty and 4 years, 1 month, and 25 days of prior inactive service.

3.  On 3 March 2009, the applicant commenced out-processing with preparation of a DD Form 2648.  This form shows he requested counseling for post-service Department of Veterans Affairs (VA) benefits and education training.

4.  He was authorized transition leave commencing on 16 July 2009.

5.  The applicant's records show he has four qualifying dependents entered into the Defense Enrollment Eligibility Reporting System.

6.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible individual 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 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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

8.  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 for administration of the program.

9.  In similar cases, the Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, has recommended approval of an applicant's request only if an applicant left military service within 90 days following implementation of the TEB Program.  Although significant measures were made by DOD, the VA, and the Army 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.

DISCUSSION AND CONCLUSIONS:

1.  The Army released TEB policy guidelines on line in 10 July 2009 with commencement of the program effective 1 August 2009.  The applicant commenced his transition leave 6 days after initial release of the TEB guidance policy.

2.  DOD, the 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.  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 available evidence shows the applicant was fully eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement, but he did not do so.

5.  The applicant had over 26 years of service upon retirement, no additional service requirement, no evidence of any adverse action, and he would have been eligible to transfer the benefits if he had done so before he left the service.

6.  The applicant commenced his transition leave during the first week after initial implementation of the TEB.  It is reasonable to presume that had he 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.



      _________________________
                 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)                                         AR20130004376



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ABCMR Record of Proceedings (cont)                                         AR20130004376



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