IN THE CASE OF:
BOARD DATE: 11 March 2014
DOCKET NUMBER: AR20130011496
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 under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his son.
2. The applicant states:
* he was stationed at Schofield Barracks, HI, during the Spring of 2009 and was in the process of retiring
* in August 2009, he was on terminal leave and permissive temporary duty setting his family up for retirement in Fayetteville, NC
* he processed his online application to transfer benefits to his son and assumed it was complete and a done deal
* he was never notified of any errors with his application or any issues at all
* in May 2013, he attempted to use his Post-9/11 GI Bill benefit for his son and he was denied
* he investigated and discovered the Department of Veterans Affairs (VA) had no record of enrollment
* he found out that his retention noncommissioned officer should have contacted him during the application process to finish the process and sign some paperwork
* it is obvious attempts were not made to contact him since he was no longer in Hawaii at the time this would have taken place
* he contacted his command sergeant major several times while he was on terminal leave to provide temporary addresses and phone numbers
* he understands there was a lot of confusion during the first 90 days of the program implementation
* his computer crashed since his retirement and his only proof is his word
3. The applicant provides:
* self-authored statements
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Retirement
* Certificate of Appreciation
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 Number 058-0004, issued by United States Army Garrison-Hawaii, Schofield Barracks, HI, dated 27 February 2009, reassigned the applicant to the U.S. Army Transition Center, Schofield Barracks, HI, effective 18 June 2009.
3. On 30 September 2009, the applicant was retired and transferred to the Retired List.
4. There is no evidence of record which shows he transferred his Post-9/11 GI Bill benefits to his dependent prior to his discharge.
5. 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 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.
6. 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.
7. DOD, the Army, and the 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 educational benefits.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for an exception to policy to transfer educational benefits under the TEB provision of the Post-9/11 GI Bill to his dependent was carefully considered.
2. 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 there is no documentary evidence that he did so. The program was implemented in July 2009 and he was assigned to the transition center on 18 June 2009 prior to his retirement on 1 October 2009.
3. DOD, the VA, and the Army conducted massive public campaigns 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 several criteria to qualify to transfer benefits to an eligible dependent.
4. During the initial implementation of this new program, many Soldiers in 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's implementation. Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.
5. The applicant's retirement date was 1 October 2009. It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while in an active duty status he would have done so. Therefore, 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 Post-9/11 GI Bill benefits to his dependents prior to his 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) AR20130011496
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ABCMR Record of Proceedings (cont) AR20130011496
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