IN THE CASE OF:	  

		BOARD DATE:	4 February 2014

		DOCKET NUMBER:  AR20130009158 


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) to his dependents under the Post-9/11 GI Bill.

2.  The applicant states, in effect, prior to separating from the Army he was never provided complete information with respect to the eligibility requirements for the TEB provision of the Post-9/11 GI Bill.  He attests that in conjunction with his retirement on 1 September 2009, he began his transitional leave in June 2009 prior to the program being enacted.  Therefore the topic was not discussed during his transition counseling and it was not explained that he was required to transfer his benefits to his eligible family members before he retired from the Army.

3.  The applicant further states that when he first learned of the program in September 2009 he attempted to transfer his benefits online; however, his family members' names did not appear on the appropriate databases.  During the same month, he contacted the Department of Veterans Affairs (VA) to solicit their assistance and they referred him back to the Department of the Army, Deputy Chief of Staff, G1.  He contacted G1 and his request was declined due to the fact that he was no longer on active duty and, therefore, was no longer eligible to transfer his education benefits to his dependents.  Since then, he has attempted to resolve this matter again with both the VA and Army G1, without success.  It was only after he solicited assistance from his U.S. Senator in 2013 that he received a letter from the U.S. Army Human Resources Command (HRC) and learned that the Army Review Boards Agency would consider cases of those who retired within the first 90 days of implementation of the TEB program.

4.  The applicant provides:

* a self-authored statement
* retirement orders
* DA Form 31 (Request and Authority for Leave)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Joint Staff Certificate of Retirement
* Congressional correspondence

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 retired from the Regular Army on 31 August 2009 by reason of sufficient service for retirement.  He completed 21 years, 9 months, and 29 days of creditable active service.

3.  On 22 June 2009, the Department of Defense (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 31 August 2009.  Prior to retirement, it does not appear he applied 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 31 August 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(s) 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)                                         AR20130009158



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ABCMR Record of Proceedings (cont)                                         AR20130009158



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