IN THE CASE OF:	  

		BOARD DATE:	  12 February 2014

		DOCKET NUMBER:  AR20130010014 


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 correction of his records to show approval to transfer his educational benefits to his son under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he moved his retirement date back 1 month when the new Post-9/11 GI Bill came out so he could qualify for it.  At the time, a lot of education centers and reenlistment noncommissioned officers had very little knowledge about how to get started.  When "they" found out he was retired, his request was not approved because of his retirement status.  He just got back from Afghanistan in August 2012 and is trying to get the process started again.  He has not used any of his Post-9/11 GI Bill benefits and is hoping to transfer his educational benefits to his 14 year old son.  He has been trying to receive what belongs to him and his family for his 23 years and 6 months of service during three wars.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), retirement orders, and four pages of email.

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 enlisted in the Regular Army on 5 February 1986.  He was promoted to the rank of sergeant first class (SFC)/E-7 on 1 November 1999.

3.  His records contain a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 30 September 2008, wherein it shows he received transition counseling on that date, to include counseling on educational benefits.

4.  Headquarters, U.S. Army Garrison, Fort Gordon, GA, Orders 283-0901, dated 9 October 2008, released him from active duty effective 31 August 2009 for the purpose of retirement.  He was honorably retired on 31 August 2009 and he was placed on the Retired List in the rank of SFC on 1 September 2009.  He completed 23 years, 6 months, and 26 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 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 he or she:

	a.  has 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 Department of Veterans Affairs (VA).  Once the benefits are transferred, children may use the benefits up to age 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, 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 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.  He retired on 31 August 2009.

2.  DOD, the Army, and the VA 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 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 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 applicant's retirement date was 31 August 2009; however, the evidence of record shows he was counseled on educational benefits in September 2008 and presumably departed on transition leave 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 serving 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 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 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)                                         AR20130010014



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ABCMR Record of Proceedings (cont)                                         AR20130010014



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