IN THE CASE OF:	  

		BOARD DATE:  5 February 2014

		DOCKET NUMBER:  AR20130009663 


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 an exception to policy to transfer educational benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his daughter.

2.  The applicant states:

* he was unable to transfer his education benefits to his daughter because he was on retirement leave prior to 1 August 2009
* on 30 November 2009, he was separated from active duty
* he was unaware he had to transfer the benefits prior to leaving active duty
* his daughter was 13 years old at the time
* the Department of Defense has found that some retirees for the period 1 August through 1 November 2009 may not have known of the requirements for the TEB provision of the Post-9/11 GI Bill
* he has a 90 percent disability rating and served a total of 29 years

3.  The applicant provides:

* self-authored statements
* 2 DD Forms 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.  After having prior periods of honorable service in the Regular Army and the U.S. Army Reserve (USAR), the applicant reenlisted in the U.S. Army Reserve on 11 July 1999.  

3.  His records contain a DA Form 31 (Request and Authority for Leave), dated 20 May 2008, and show he was granted:

* permissive temporary duty from 26 August through 11 September 2009
* transition leave from 12 September through 30 November 2009

4.  On 30 November 2009, he was honorably released from active duty and transferred to the Retired List.

5.  There is no evidence of record which shows he transferred his Post-9/11 GI Bill benefits to his dependent prior to his discharge.

6.  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 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 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.

7.  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.

8.  DOD, the Army, and the Department of Veterans Affairs initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an exception to policy to transfer educational benefits under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill to his dependent was carefully considered.

2.  The applicant was fully eligible to transfer his educational benefits under the TEB provision of the Post 9/11 GI Bill prior to retirement, but he did not do so.  The program was implemented in July 2009 and he retired on 1 December 2009.  He did not apply for the transfer of benefits while on active duty.

3.  DOD, the 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 several criteria to qualify to transfer benefits to an eligible dependent.

4.  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 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.

5.  The applicant's retirement date was 1 December 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while in an active duty status 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 dependents 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)                                         AR20130009663



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ABCMR Record of Proceedings (cont)                                         AR20130009663



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