BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130007759


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 of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to his dependent children.

2.  The applicant states, in effect, prior to separating from the Army he was not provided complete information regarding the eligibility requirements for TEB with respect to the Post-9/11 GI Bill.  He attests that during transition counseling, it was not explained to him that he must transfer his benefits to his eligible family members before he retired from the Army.  When he retired in December 2009, he had 24 years of time in service; therefore, he would not have had to serve the additional 4-year active duty service obligation.  He strongly desires to transfer his educational benefits to his children because he is a disabled veteran with much desire to work and little desire to further his own education.

3.  The applicant provides:

* DA Form 137-1 (Unit Clearance Record)
* DA Form 137-2 (Installation Clearance Record)
* DA Form 31 (Request and Authority for Leave)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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.  His DA Form 137-2 indicates he attended a pre-separation briefing and underwent pre-separation counseling in anticipation of his upcoming retirement.

3.  The applicant retired from the Regular Army on 30 November 2009.  He completed 24 years and 19 days of creditable active service.  His DA Form 31 shows he began permissive temporary duty (TDY) and transition leave on 15 September 2009 in connection with his retirement.

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 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 educational 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 November 2009.  He began permissive TDY and transition leave on 15 September 2009 in connection with his retirement.  He did not apply for the TEB while serving on active duty prior to his retirement effective date.

2.  DOD, the Army, and the Department of Veterans Affairs 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 began permissive TDY and transition leave on 15 September 2009 and he retired on 30 November 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while serving 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 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 member prior to his 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)                                         AR20130007759



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ABCMR Record of Proceedings (cont)                                         AR20130007759



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