IN THE CASE OF: 

		BOARD DATE:	    28 January 2014

		DOCKET NUMBER:  AR20130009877 


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

2.  The applicant states: 

   a.  He qualified for the Post 9/11 education benefits based upon his service.  The bill had been passed at the time of his retirement; however, there were no implementing instructions at the time he was out-processing.  He cleared the Education Center, Fort Myer, VA, on 14 May 2009 and was told he was eligible, but that they had no details on how he could enroll.  He was provided a flyer with the web page and told to check there in the future for details on how to take advantage of it. 
   
   b.  Almost a year later, when he went back to the education center to fill out paperwork to pay for his daughter's pending enrollment into George Mason University, he was told that he could not avail himself of this earned benefit because he had not enrolled.  In order to enroll, an active duty Common Access Card (CAC) was needed.  He had to give up his CAC when he cleared the installation months prior.  He was told he was one of many caught up in the time gap between the passage of the law and implementing instructions.  He was told to contact the Department of Veterans Affairs (VA) and the VA said to contact the Army.  
   
   
   c.  He is currently unable to transfer his education benefits to any of his children.  His daughter has completed her sophomore year of college, and, rather than using these benefits, he has had to pay for her schooling.  He has five other children and a spouse whom he would also like to include as potential recipients of his education benefits.  He served honorably over 20 years, including multiple combat tours and overseas deployments.  More importantly, his family stood by him throughout that time and his many absences.  Thus, they earned these benefits as much as he has.
   
   d.  He cleared the installation and began transition leave on 17 June 2009, prior to implementing instructions being issued for transferring the benefits.  The education center made no effort to reach out to those retirees whom they knew had out-processed during that time to inform them of the new instructions.  He is only asking that he be granted a benefit that he has earned.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 137-2 (Installation Clearance Record), DA Form 31 (Request and Authority for Leave), a statement, orders, and two letters.

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 entered active duty on 7 June 1989 as a second lieutenant in the U.S. Army Reserve and entered extended active duty.  He served in staff and leadership positions and he attained the rank/grade of lieutenant colonel (LTC)/O-5 in the Regular Army on 1 March 2006.

3.  The applicant provides a:
   
   a.  DA Form 137-2 wherein it shows his departure date as 28 May 2009 and that the form was stamped as processed by the Army Education Center counselor, Fort Meyer, VA, on 14 May 2009.
   b.  statement, dated 15 May 2009, wherein it shows he received counseling at the Army Education Center, Fort Meyer, VA, on Veterans Educational Benefits.  This statement was signed by both the applicant and the counselor.
   
   c.  DA Form 31, dated 24 April 2009, wherein it shows he requested transition leave from 17 June 2009 to 31 August 2009 and the leave was approved.

4.  On 31 August 2009, he retired from active duty and on 1 September 2009, he was placed on the Retired List in the rank of LTC.  He completed 20 years, 2 months, and 24 days of creditable active service.

5.  It is not known how many eligible family members the applicant had enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) prior to his retirement date.

6.  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 family 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.

7.  A member of the Armed Forces is eligible to transfer education benefits to family members if they:

	a.  have eligible family members enrolled in DEERS.  Children lose eligible family member status upon turning 21 years of age, or at marriage.  Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried; and
	b.  initially requests the transfer through the DOD TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the VA.  Once the benefits are transferred, children may use the benefit up to the age of 26.

8.  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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his education 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.  He retired on 31 August 2009.  

2.  The DOD, 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 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 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; however, he provided evidence that shows he was counseled on Veterans Education Benefits in May 2009 and presumably signed out on transition leave on 17 June 2009, prior to the date the TEB online database was operational.  It is reasonable to presume that had he been aware of the procedure to transfer his benefits while in an active duty status he would have done so.

5.  In view of the foregoing and 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 his Post-9/11 GI Bill benefits to his eligible family members prior to 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)                                         AR20130009877



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ABCMR Record of Proceedings (cont)                                         AR20130009877



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