IN THE CASE OF:
BOARD DATE: 4 March 2014
DOCKET NUMBER: AR20130010706
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, in effect, correction of his records to show his eligible family members were listed in the official Transfer of Education Benefits (TEB) online database and approval to transfer his Montgomery GI Bill (MGIB) educational benefits to his eligible family members under the provision of the Post-9/11 GI Bill.
2. The applicant states that on 24 September 2009, while he was on active duty, he transferred 10 months of his educational benefits to his spouse and
14 months of educational benefits to his daughter. During the TEB process, the Department of Veterans Affairs (VA) adjudicated a total of 16 months of educational benefits to be transferred to his daughter.
a. He states a recommendation was made by the Department of Defense (DOD) to the VA that he was ineligible to transfer his educational benefits. However, an internal VA memorandum acknowledges that veterans released from active duty during the period 1 August 2009 through 1 November 2009 were not aware of the TEB program and procedures.
b. He adds the VA honored the commitment from the U.S. Army regarding his TEB for 3 full years. However, thereafter, the VA relented to the DOD and denied his Post-9/11 GI Bill TEB. He concludes that the denial of the TEB is an injustice because he is entitled to transfer his benefits to his dependents.
3. The applicant provides copies of the following documents:
* DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report)
* DD Form 2648 (Pre-separation Counseling Checklist for Active Component Service Members)
* Facsimile Coversheet
* Orders 300-0003, dated 27 October 2009
* DD Form 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. The applicant had prior honorable enlisted service in the U.S. Army Reserve (USAR) and Army National Guard of the United States from 28 September 1999 through 27 July 2007; a period of more than 7 years.
3. He enlisted in the Regular Army (RA) on 14 September 2007 and reenlisted in the RA on 31 October 2008 for a period of 3 years.
4. A DD Form 2648 shows the applicant received counseling on his education benefits on 24 September 2009.
5. Headquarters, 1st Infantry Division, Fort Riley, KS, Orders 300-0003, dated 27 October 2009, discharged the applicant from the RA effective 27 October 2009.
6. The applicant's DD Form 214 shows he was involuntarily separated with an honorable discharge on 27 October 2009 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, based on a condition (not a disability). He had completed 2 years,
1 month, and 14 days of net active service this period; 6 years of total prior active service; and 1 year and 10 months of total prior inactive service.
7. In support of his application the applicant provides the following documents:
a. An NCO Evaluation Report, covering the period 14 September 2008 through 1 April 2009, that shows the senior rater evaluated the applicant's overall performance as "Successful (2)" and overall potential as "Superior (2)."
b. Fort Riley, KS, Facsimile Coversheet, dated 29 October 2009, that shows Mr. Raymond L. S-----, Fort Riley Congressional Inquiries, transmitted orders to Ms. Gilda L---- and indicated, "Finally! Attached are the official orders separating Specialist (now Mr.) [applicant's name] from the Army on October 27, 2009 with full benefits - medical, etc. Thanks."
8. Public Law 110-252 (Supplemental Appropriations Act 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members. This public law amended Title 10, U.S. Code, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.
9. 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 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 she or she has completed 20 years of active duty or 20 qualifying years of Reserve service.
10. 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.
11. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance for administration of the program.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his records should be corrected to show his eligible family members were listed in the official TEB online database, they were approved for transfer of his MGIB educational benefits under the provisions of the Post-9/11 GI Bill, and they continued to remain eligible for the benefits.
2. Records show the applicant was serving on active duty and as a member of the RA on or after 1 August 2009. Thus, he was eligible (emphasis added) to transfer his educational benefits to his eligible family members under the Post-9/11 GI Bill provided he met the other qualifying criteria.
3. The applicant was involuntarily discharged on 27 October 2009 which was within 90 days of the program's implementation date. The evidence of record shows that he was aware of the requirement to transfer his benefits prior to leaving military service because he states that he did transfer benefits.
4. However, an eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least 6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces or has at least 10 years of service and is precluded from committing to 4 additional years.
5. At the time of his involuntary discharge from the RA on 27 October 2009, the applicant was credited with 9 years, 11 months, and 14 days of military service. Since he did not have at least 10 years of service in the Armed Forces he did not fall under the provision of being precluded by either statute or policy from committing to 4 additional years. It appears from the applicants statement that an error was made when it was initially determined he was eligible to transfer his benefits, and the error was later corrected. However, the applicant provided no documentation to support his actual registration in the on-line TEB database prior to his discharge from the Army.
6. Regrettably, considering all of the evidence and information presented by the applicant together with the evidence of record, by law there is no basis for granting the applicant's requested relief at this time.
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 that 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) AR20130010706
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