IN THE CASE OF:
BOARD DATE: 3 April 2014
DOCKET NUMBER: AR20130014272
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 education benefits to his dependent under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he was not informed about the TEB option during his last year of active duty, or at the time of retirement. His retirement was approved and he out-processed in July 2009 on terminal leave. His date of retirement was
1 December 2009. He wants to know what he must do to allow his dependent to use this benefit.
3. The applicant provides no additional 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. Orders 035-0163, Fort Hood, TX, dated 4 February 2009, announced the applicant's release from active duty with an effective date of 30 November 2009.
3. After completing over 20 years and 2 days of active duty service, the applicant retired from the Army on 30 November 2009.
4. The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives, 2642. In July 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.
5. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members. A service member may execute TEB only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. General eligibility criteria provides that service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.
6. The program guidance stipulates that a service member who has completed 20 years of active Federal service as computed under Title 10, U.S. Code, section 12732 and becomes retirement eligible during the period 1 August 2009 through 1 August 2013 is entitled to transfer benefits to his/her dependents. Service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 do not incur any additional service requirement to be eligible for the TEB.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests approval to transfer his education benefits to his dependent under the TEB provisions of the Post-9/11 GI Bill.
2. The applicant had 20 years of service upon retirement. He did not incur an additional service requirement and there is no evidence of any adverse action that would have made him ineligible for the TEB. Therefore, he would have been eligible to transfer the benefit to either his spouse or children if he had requested to do so before leaving the service.
3. During the initial implementation of this 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 90 days of the program implementation. Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.
4. His retirement date was 30 November 2009. His orders were published in February 2009. He contends that he had signed out on terminal leave in July 2009. It is reasonable to presume that had he 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 his Post 9/11 GI Bill benefits to his dependent(s) 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.
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