BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130006555 


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 her educational benefits to her daughter under the Transfer of Education Benefits (TEB) provision of the 
Post-9/11 GI Bill.

2.  The applicant states she took permissive temporary duty and transition leave beginning 10 July 2009, only 18 days after the TEB provision became law and before it was implemented.  The only information she received on the Post-911 GI Bill benefits occurred on 22 July 2009.  The briefing was incomplete and misleading as it did not indicate that she had to make the TEB election while still serving on active duty.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2648 (Preseparation Counseling Checklist)
* Transition Assistance Program briefing handout titled, "Post-911 GI Bill Transferability Policy Quick Reference"
* DA Form 137-1 (Unit Clearance Record)
* daughter's college acceptance letter
* daughter's high school transcript

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.  On 4 June 2009, the applicant commenced out-processing with preparation of a DD Form 2648.  This form shows she requested counseling for post-service Department of Veterans Affairs (VA) benefits and education training.

3.  The applicant, a U.S. Army Reserve sergeant, retired from active duty on 30 September 2009.  She completed 12 years and 4 months of continuous active duty service with 7 years, 8 months, and 18 days of prior active duty service.

4.  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.

5.  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.

6.  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.

7.  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 provision.  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 online on 10 July 2009 with commencement of the program effective 1 August 2009.  The applicant retired on 30 September 2009.

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 commenced transition leave within 60 to 90 days of the program 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 available evidence shows the applicant was fully eligible to transfer her educational benefits under the TEB provision of the Post-9/11 GI Bill prior to her retirement, but she did not do so.

5.  The applicant had over 20 years of service upon retirement, no additional service requirement, no evidence of any adverse action, and she would have been eligible to transfer the benefits if she had done so before she left the service.  It is reasonable to presume that she would have done so had she been aware of the requirement to transfer her benefits while in an active duty status.  Therefore, as a matter of equity, her records should be corrected to show she did so in a timely manner prior to her 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 her application and the Army approved her request to 
transfer her Post-9/11 GI Bill benefits to her family members prior to her 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)                                         AR20130006555



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ABCMR Record of Proceedings (cont)                                         AR20130006555



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