IN THE CASE OF:	  

		BOARD DATE:  27 February 2014

		DOCKET NUMBER:  AR20130011731 


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

2.  The applicant states he was not aware that he could transfer his educational benefits to his children.  There was no counseling in place at Fort Bragg, NC, when he out-processed in July 2009.  He tried to work this issue through the Department of Veterans Affairs (VA), but he recently found out several of his peers, one Air Force and the other Army, from the same time frame were granted waivers though their respective service Board for Correction of Military Records.  Apparently this was due to the lack of sufficient guidance or training at the time to inform pending retirees of the ability to transfer educational benefits to their children that had to occur while they were still serving on active duty.  He would like the opportunity to transfer his educational benefits to one of his children.

3.  The applicant provides his 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 was appointed as a U.S. Army Reserve second lieutenant and he entered active duty on 23 May 1982.  He served in staff and leadership positions and he was promoted to the rank/grade of colonel (COL)/O-6 in the Regular Army on 1 March 2004.

3.  On 30 September 2009, he retired in the rank of COL and he was placed on the Retired List on 1 October 2009.  His DD Form 214 shows he completed 27 years, 4 months, and 5 days of creditable active service.

4.  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.

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 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.

6.  A member of the Armed Forces is eligible to transfer educational 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 VA.  Once the benefits are transferred, children may use the benefits up to age 26.

7.  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.

8.  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 on the administration of the program.

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 implementation policy was released in July 2009.  He retired on 30 September 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 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 implementation.  Similarly, officials at some education centers may also have been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  It is reasonable to presume that had he been aware of the requirement to request the transfer of his educational benefits under the TEB provision of the Post-9/11 GI Bill while he was 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 transferred his Post-9/11 GI Bill educational benefits 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)                                         AR20130011731



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ABCMR Record of Proceedings (cont)                                         AR20130011731



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