IN THE CASE OF:	  

		BOARD DATE:	  5 March 2014

		DOCKET NUMBER:  AR20130010694 


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 his education benefits were transferred to his eligible dependent in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he retired effective 13 September 2009 and was not notified that election of the transfer must be completed prior to his retirement.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and assignment orders to the Retired Reserve.

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.  Orders 198-838, issued by Texas Military Forces Army National Guard, dated 16 July 2004, ordered the applicant to active duty from a Reserve Component unit in support of Operation Iraqi Freedom effective 2 August 2004.  His DD Form 214 for this period of mobilized service shows he served on active duty during the period 2 August 2004 through 13 January 2006. 

3.  On 3 March 2009, he was issued a Notice of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).

4.  Orders 246-1208, issued by Texas Military Forces Army National Guard, dated 3 September 2009, assigned the applicant to the Retired Reserve effective 13 September 2009 due to retirement.

5.  The Department of the Army, Office of the Deputy Chief of Staff, G-1, previously stated that a Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program.  The Army, Department of Defense (DoD), and Department of Veterans Affairs (VA) 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 education benefits.

6.  Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits.  Further this law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve.

7.  On 22 June 2009, the 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 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, in pertinent part, 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 service or 20 qualifying years of Reserve service.

8.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance for the administration of the program.

	a.  A Soldier must initially request to transfer benefits on the DoD's TEB online database.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access.  The respective family member must then submit an application for VA educational benefits (VA Form 22-1990e (Application for Family Member to Use Transferred Benefits)) to request to use the benefits.

	b.  Changes to the number of months allocated to family members can be made at anytime, to include once the Soldier leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.

DISCUSSION AND CONCLUSIONS:

1.  The program was implemented on 1 August 2009.  The available evidence shows the applicant was eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement.

2.  His retirement date was 13 September 2009.  He did not complete the requirements to apply to transfer educational benefits in the TEB online database.  In view of the fact that the Post-9/11 GI Bill Transferability Program was a new program and his transition from military service was in the second month after implementation of the program, it is particularly plausible that he was unaware of the requirement to complete an application to transfer his educational benefits while he was still in a member of the Selected Reserve.

3.  Therefore, in the interest of equity, it would be appropriate to correct his record to reflect he applied to transfer his educational benefits under the
Post-9/11 GI Bill Transferability Program prior to 13 September 2009.

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 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)                                         AR20130010694



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ABCMR Record of Proceedings (cont)                                         AR20130010694



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