IN THE CASE OF:	  

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130010604 


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

2.  The applicant states he retired on 31 March 2010 after 20 years of service and met eligibility requirements to transfer benefits with no further service.  Before retiring, he was not informed or aware that he needed to accomplish the transfer of benefits while still serving on active duty.

	a.  He was assigned to the Communications and Electronics Research, Development, and Engineering Center at Fort Monmouth, NJ.  He started permissive temporary duty (TDY) on 7 December 2009 and transition leave on 19 January 2010 with an effective retirement date of 31 March 2010.  He was aware of the ability to transfer educational benefits and planned to do so but was not aware that he needed to request transfer while serving on active duty.

	b.  If the Department of Defense (DOD), Department of the Army (DA), and Department of Veterans Affairs (VA) disseminated information regarding the Post-9/11 GI Bill implementation in 2009, none of this information clearly communicated the requirement to accomplish the transfer of benefits while still serving on active duty.  He attended pre-retirement counseling and briefings during the period July 2009 through September 2009; however, there was still a lack of clarity on the rules regarding the TEB Program.  He is submitting the briefing and counseling received in 2009 and the most current version of both as evidence.  There is still no mention of the requirement to transfer the benefits while serving on active duty.  Furthermore, those providing such briefings certainly were not aware of the specific rules.  None of the briefings stated anything about the policy to transfer his educational benefits while serving on active duty.  He asked the installation Retirement Services Officer and VA representatives about the TEB Program and their answer was that the policy was under review.  He never received an email or any other type of correspondence from DOD, DA, or the VA notifying him of this policy.  He also researched the Internet (VA and Army Knowledge Online) for this topic and there was no clear guidance about the policy at that time.  Fort Monmouth had a small population of military personnel.  He is not sure if this contributed to the limited information available to the Soldiers.  In view of the fact that information about transfer guidance was not fully understood prior to his retirement, he requests correction of his records to reflect that he applied to transfer his educational benefits under the Post-9/11 GI Bill TEB provision upon implementation of the program.

3.  The applicant provides:

* Army Retirement Services Pre-Retirement Counseling Guide, dated October 2008
* Army Pre-Retirement Briefing, dated August 2009
* DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 11 August 2009 (June 2005 version of the form)
* Headquarters, U.S. Army Garrison, Fort Monmouth, NJ, Orders 223-0021, dated 11 August 2009
* Army Retirement Services Pre-Retirement Counseling Guide, dated October 2008
* Army Pre-Retirement Briefing, dated January 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 March 2010

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.  On 10 June 1989, the applicant was appointed as a commissioned officer and entered active duty.  He was promoted to the rank of major/pay grade O-4 on 1 October 2001.

3.  Headquarters, U.S. Army Garrison, Fort Monmouth, NJ, Orders 223-0021, dated 11 August 2009, show the applicant had an approved retirement date of 31 March 2010.

4.  The applicant's DD Form 214 shows he retired in the rank/grade of major/O-4 on 31 March 2010.  It further shows he completed 20 years, 9 months, and 21 days of active military service.

5.  The applicant's DD Form 2648, dated 11 August 2009, indicates he received counseling regarding educational benefits that included the Montgomery GI Bill, Veterans Educational Assistance Program, Vietnam Era, etc.

6.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public 
Law 110-252, House of Representatives 2642.  In July 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

7.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active duty service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability, or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members also must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302 and 12304 (orders in support of contingency operations; i.e., mobilization), and must have received an honorable discharge at the conclusion of active duty service.

8.  On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  This policy states an eligible individual 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 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.

9.  A review of the pre-retirement briefing/counseling guides provided by the applicant failed to show any specific information concerning the TEB Program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he elected to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill to his daughter.

2.  The evidence of record shows the applicant was fully eligible to transfer his educational benefits under the TEB Program prior to his retirement; however, there is no evidence to show he attempted to do so.  He contends that he was not counseled about the TEB Program prior to leaving active duty service.

3.  DOD, DA, 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.  There was some confusion during the early stages after implementation.  Accordingly, some exceptions were granted to those individuals who retired between 1 August and 1 November 2009.  However, the applicant admits he did not begin permissive TDY until 7 December 2009 and did not begin transition leave until 19 January 2010.  Therefore, a similar exception to policy would not be appropriate in the applicant's case.

4.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20130010604



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ABCMR Record of Proceedings (cont)                                         AR20130010604



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