IN THE CASE OF:	  

		BOARD DATE:  26 November 2014

		DOCKET NUMBER:  AR20130006484 


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

2.  The applicant states:

* he did not receive any training, retirement counseling, or an explanation of the Post 9/11 GI Bill prior to leaving active duty on 30 September 2009
* by October 2009, he had performed all the drills and annual training days that he was allowed to perform for the rest of his 30-year career
* he attempted to transfer benefits to his son, but he was unable to do so and was told he had to have it done prior to retiring
* he was not aware of the requirements and his children have always been in his Defense Enrollment Eligibility Reporting System account
* he has no intentions of ever using the benefit for himself since he and his wife both have degrees
* he never returned to an Army Reserve unit and the unit he left only had one military person on the entire base and did not support retiring personnel
* while he was mobilized he lost everything he owned and had to file bankruptcy when his business partner double-crossed him
* he cashed in the college savings tuition program he had for his children while trying to fight his partner
* he has no other way to send his children to college
* he served his country faithfully and he and his family have suffered many hardships in doing so
* he is currently serving as a Department of Defense (DOD) civilian in Afghanistan
* he has no Officer Evaluation Report (OER) after 25 August 2008 which shows he did not receive any support

3.  The applicant provides self-authored 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's DD Form 93 (Record of Emergency Data), dated 3 December 2007, shows he has five dependents.

3.  Orders Number 09-064-00016, issued by Headquarters, 108th Training Command, Charlotte, NC, dated 5 March 2009, show that on 14 November 2008, the applicant was transferred outside of his command to a troop program unit (TPU) in Nashville, TN.

4.  A review of his records show only two documents (orders) after 2008 and his last OER was for the period 1 February 2008 through 25 August 2008.

5.  Orders Number 10-258-00047, issued by Headquarters, 81st Regional Support Command, Fort Jackson, SC, dated 15 September 2010, show that while assigned to a TPU in Nashville, TN, the applicant was reassigned to the Retired Reserve effective 31 May 2010.

6.  His U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 30 April 2013, shows he earned 48 inactive duty training points in retirement year ending (RYE) 16 May 2010.
7.  The applicant provides self-authored statements explaining his attempts to transfer his benefits.

8.  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 evidence of record does not support the applicant's request for correction of his record to allow him to transfer his Post 9/11 GI Bill education benefits.

2.  The Army, DOD, and VA initiated a massive public campaign that generated major communications through military, public, and social media venues on the Post 9/11 GI Bill and transfer of education benefits.  The probability is high that Soldiers who left service after the 90 days following the program's implementation were aware of the program.  He was transferred to the Retired Reserve 6 months outside of the 90-day window.

3.  Considering the lack of administrative support resulting from his geographical separation from his unit, it was in his best interest to seek information regarding his benefits elsewhere.  He does not indicate why he did not do so.  He earned 48 inactive duty points in RYE 16 May 2010 which shows he had contact with the Army and presumably would have been exposed to the publicity campaign noted above.  It is reasonable to presume that had he been proactive prior to his mandatory removal date, he could have easily have obtained the necessary information to effect a transfer of his Post 9/11 GI Bill education benefits prior to this separation date.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  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)                                         AR20130006484



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ABCMR Record of Proceedings (cont)                                         AR20130006484



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