IN THE CASE OF: 

		BOARD DATE:	    17 April 2014

		DOCKET NUMBER:  AR20130012949 


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 family members under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

* prior to his retirement he elected to transfer the GI Bill benefits to his children
* he had an appointment at the Fort Riley, KS, Education Center and he transferred the benefits to his two children equally
* when his children tried to use the benefit, he was told there was no record of the transfer
* he served his country for over 20 years, including 36 months of combat service and he attained the grade of E-7
* he made the proper appointment and provided all the information to the education counselor

3.  The applicant provides a printout from Goarmyed.com and a letter from the Fort Riley Army Education Center.

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.  Having had prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army (RA) on 19 November 1989.  He completed a DD Form 2366 (Veterans Educational Assistance Act of 1984 (New GI Bill)) but left the section "Statement of Enrollment, I am enrolling in the New GI Bill and accept the terms of 2a through k" blank and unsigned. 

3.  He served through multiple reenlistments in the RA in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.  

4.  Prior to his retirement, he underwent pre-separation counseling.  He checked the "No" block in item 13a (Education/Training - Education Benefits (Montgomery GI Bill)) of his DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members).  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

5.  He retired on 30 November 2009 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 December 2009.  He completed 20 years and 2 days of creditable active service.  

6.  He provides:

	a.  A printout from Goarmyed.com that shows an education counselor made an entry on 14 September 2009 that reads "Non participation MGIB – Active Duty period; informed him of Post 9/11 Chapter 33 GI Bill benefits." 

	b.  Letter, titled "Army Continuing Education System – Fort Riley Education Center," dated 14 September 2009, and signed by the applicant and his counselor.  It reads "I have received counseling on Veterans Educational benefits.  I did not participate in the MGIB and understand I have no benefits for this period of active service." 


7.  An email, dated 15 April 2014, from the Defense Finance and Accounting Service, Indiana, confirmed the applicant signed out on permissive temporary duty (PTDY) from 25 September to 14 October 209 and on transition leave from 15 October to 30 November 2009. 

8.  Public Law 110-252 limits the eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve.  On 22 June 2009, (Department of Defense (DOD)) established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states 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 from 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.  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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his education benefits under the TEB prior to retirement.  The program was implemented in August 2009 and he retired on 30 November 2009.  However, he signed out on PTDY from 25 September to 14 October 2009 and on transition leave from 15 October to 30 November 2009.  Prior to retirement he did apply for the transfer of benefits.

2.  The DOD, 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 various criteria to qualify to transfer benefits to an eligible dependent.

3.  Nevertheless, during the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  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.

4.  The applicant's retirement date was 30 November 2009 but he outproccessed and signed out of the Army on 25 September 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while on active duty  and obtain some sort of written confirmation that it was successfully transferred 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 family member 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)                                         AR20130012949



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ABCMR Record of Proceedings (cont)                                         AR20130012949



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