IN THE CASE OF:	 

		BOARD DATE:	     12 November 2013

		DOCKET NUMBER:  AR20130005799


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 correction of his records to show he made a timely application, prior to his effective date of retirement, to transfer his unused education benefits to his eligible dependent, in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

* he was unaware at the time of his retirement that in order to transfer his unused Post-9/11 GI Bill education benefits, he had to accomplish the transfer while still an active member of the Armed Forces
* he was made aware of this fact on 15 May 2012, when he visited the Department of Veterans Affairs (VA) office to transfer his unused education benefits to his spouse
* he believes he should be afforded the opportunity to transfer his unused education benefits since he was unaware of the program requirements at the time of his retirement
* he was not counseled or aware of his rights to transfer his Post-9/11
GI Bill benefits prior to his retirement on 30 September 2009
* since his retirement, he has been told by the VA that he cannot transfer his unused education benefits to his spouse or children
* if he was aware of the requirement to transfer his unused education benefits prior to retirement, he would have transferred prior to retirement

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

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 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 30 September 2009, the applicant retired from the Regular Army by reason of sufficient service for retirement in the rank/grade of lieutenant colonel (LTC)/O-5.  He competed 22 years, 11 months, and 10 days of creditable active service.

3.  On 1 October 2009, he was placed on the Retired List.

4.  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.
5.  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.

6.  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 record should be corrected to allow him to transfer his unused Post-9/11 GI Bill education benefits to his authorized family members under the TEB provisions of the Post-9/11 GI Bill.

2.  The program was implemented on 1 August 2009.  The Army, DOD, and VA conducted a massive public information 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.  Soldiers needed to meet two criteria to qualify to transfer their unused education benefits to an eligible dependent:  (a) they must be on active duty or a member of the Selected Reserve at the time of the transfer (provided they do not have an adverse action flag); and (b) they must have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of request, unless retirement eligible.

3.  During the initial implementation phase of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the necessary procedures one must follow when applying to transfer their unused education benefits.  This confusion was exacerbated by heavy use of the DOD website and the lack of proper log-in credentials for those who had signed out on transition leave within 90 days of the program implementation, as well as by a lack of familiarity with TEB provision policies by education centers and separation counselors.  The U.S. Army Human Resources Command (HRC) acknowledges that Soldiers who retired during the implementation phase may not have had the necessary information to properly transfer their unused education benefits.

4.  The evidence shows the applicant was fully eligible to transfer his unused education benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement date of 30 September 2009.  Given the initial uncertainty regarding the 

program during its infancy, it is not improbable that he lacked the complete information necessary to make a proper election with respect to transferring his unused education benefits.

5.  It is reasonable to conclude that had he known of the proper procedures to follow to successfully transfer his unused education benefits, he would have complied with them prior to his retirement on 30 September 2009.  Therefore, as a matter of equity, his records should be corrected to show he made a timely application to transfer at least 1 month of his unused education benefits to his eligible dependents, in accordance with the TEB provisions of the Post-9/11
GI Bill, 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 and the Army approved, in a timely manner, his application to transfer his unused education benefits to his eligible family members, in accordance with the TEB provision of the Post-9/11 GI Bill, prior to his effective date of 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)                                         AR20100025000



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1


ABCMR Record of Proceedings (cont)                                         AR20130005799



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1