BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130005043 


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

2.  The applicant states:

* when he retired, he was given a final briefing with the Education Center and he was told he would be able to transfer his benefits to his dependents
* he was not informed that he needed to do so prior to his retirement
* his final outprocessing date was 25 June 2009 and he signed out on transition leave on 29 June 2009; he ultimately retired on 30 September 2009
* the information about the Post 9/11 GI Bill had not been finalized or disseminated

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 1172-2 (Application for Identification card/DEERS Enrollment)
* DA Form 137-2 (Installation Clearance Record)
* DA Form 137-1 (Unit Clearance Record)
* DA Form 31 (Request and Authority for Leave)
* 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 19 July 1985 and he held military occupational specialty 92A (Automated Logistical Specialist).  He served through multiple extensions or reenlistments and he attained the rank/grade of first sergeant (1SG)/E-8.  

3.  He outprocessed his unit and installation in June 2009 and signed out on 
94 days of transition leave from 29 June 2009 to 30 September 2009.  

4.  Prior to his retirement, he had undergone a pre-separation briefing in June 2009 at Fort Hood, TX.  He checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) 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.

5.  He retired on 30 September 2009 and he was placed on the Retired List in his retired rank/grade of 1SG/E-8 on 1 October 2009.  He was credited with a total of 24 years, 2 months, and 12 days of active service.  

6.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible member 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 the maximum amount of time allowed by such policy or statute; or

	c.  is or becomes retirement eligible during the period 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his education benefits under the TEB prior to retirement, but he did not do so.  The program was implemented in August 2009 and he retired on 30 September 2009.  Prior to retirement, he did not apply for the transfer of benefits while on active duty.

2.  The DOD, 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 various criteria to qualify to transfer benefits to an eligible dependent.

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 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'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 30 September 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while on active duty 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 Post 9/11 GI Bill benefits to his family member prior to his retirement, provided all other program eligibility criteria are met (emphasis added).



      _______ _  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)                                         AR20130005043



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ABCMR Record of Proceedings (cont)                                         AR20130005043



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