IN THE CASE OF:
BOARD DATE: 27 March 2014
DOCKET NUMBER: AR20130013389
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 participation in the Transfer of Education Benefits (TEB) program.
2. The applicant states he recently found out that his daughter is not eligible to utilize his educational benefits. He believed his daughter was eligible for the TEB as she was eligible for all other benefits. He believes he was not advised of the TEB requirements because he was being retired due to disability and the program was an incentive for Soldiers to reenlist.
3. The applicant provides no supporting documentation.
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, with prior active and inactive service, enlisted in the Regular Army on 1 October 2003.
3. He was released from active duty and placed on the Temporary Disability Retired List (TDRL) on 18 February 2009.
4. The applicant's records show he has qualifying dependents entered into the Defense Enrollment Eligibility Reporting System.
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 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.
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. 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 was not on active duty at the time, 1 August 2009, the TEB program became active. In fact he was not on active duty at the time the program criteria was established on 22 June 2009.
2. There is no provision in law or regulation that would allow retroactive entitlement to the TEB for Soldiers released prior to the date of the implementation of the program.
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) AR20130013389
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130013389
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2013 | 20130006555
Although significant measures were made by DOD, the VA, and the Army to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service. The available evidence shows the applicant was fully eligible to transfer her educational benefits under the TEB provision of the Post-9/11...
ARMY | BCMR | CY2012 | 20120011060
The applicant requests approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to her daughter. The evidence of record shows the applicant retired from active duty on 31 October 2009 which is within 90 days of the implementation of the program. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she filed her application and the Army approved her request to transfer Post-9/11 GI Bill...
ARMY | BCMR | CY2012 | 20120021231
The applicant requests correction of his military records to show he transferred his educational benefits to his daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. The available evidence shows the applicant was eligible to transfer his educational benefits to his family members under the program prior to his retirement date. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing...
ARMY | BCMR | CY2012 | 20120008413
c. A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer benefits to eligible children. The applicant had more than 25 years of service upon her retirement, so she was eligible to transfer benefits to either her spouse or children if she had completed the request before leaving military service. As a result, the Board recommends that all Department of the Army records of the...
ARMY | BCMR | CY2011 | 20110019448
The applicant states: * he has tried in the past to get his educational benefits transferred to his daughter * Department of the Army and Department of Veterans Affairs (VA) representatives told him it was too late to transfer his benefits after he retired * he didn't know he could transfer his educational benefits until after he had retired * he started his terminal leave on 4 July 2009 and retired on 31 August 2009 * he was not adequately notified of his opportunity to transfer his...
ARMY | BCMR | CY2013 | 20130009663
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. A Soldier must meet several criteria to qualify to transfer benefits to an eligible dependent. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed...
ARMY | BCMR | CY2011 | 20110009936
Public Law 110-252, section 3319 provides the eligibility requirements necessary to transfer unused education benefits to family members. Notwithstanding the advisory opinion, and in view of the fact that information on transfer application procedures was not fully available at the time he began his transition, it would serve the interest of equity and fairness to correct his record to reflect he applied to transfer his education benefits under the Post-9/11 GI Bill Transferability Program...
ARMY | BCMR | CY2011 | 20110016518
The applicant states the Army Education Incentives Branch denied his request to transfer his Post 9/11 GI Bill education benefits to his daughter on 4 August 2011 because Department of Defense and Army policies require a Soldier to be on active duty or a member of the Selected Reserve in order to transfer benefits. 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; and d. for those...
ARMY | BCMR | CY2011 | 20110018149
The applicant requests an exception to policy to back-date the date he transferred his education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his dependent from 24 November 2010 to 7 April 2010. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy further states the Secretaries of the Military Departments will provide active duty participants and...
ARMY | BCMR | CY2013 | 20130000399
The applicant requests to transfer her educational benefits to her daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. Those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will placed on the Retired List on 1 August 2009. In the applicant's case, she was not in an active status on 1 August 2009 and as such she was not eligible...