IN THE CASE OF:	  

		BOARD DATE:	  8 May 2014

		DOCKET NUMBER:  AR20130015107 


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, in effect, an exception to policy to transfer his education benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states, in effect, he was not informed nor afforded the opportunity to transfer his Post-9/11 GI Bill educational benefits to his dependents because the new program was being implemented by the Department of Defense (DOD) around the time he was separating.  He recently discovered this policy was released on 29 July 2009 while he was on leave.  His separation orders are dated 16 April 2009.  He reported to Fort Leavenworth, KS on 25 June 2009.  His permissive temporary duty and retirement leave were from 26 June 2009 to 30 September 2009.  The Fort Leavenworth personnel were very informative and professional to him and his spouse about the opportunities available to them.  If they had known about these benefits, he is sure they would have informed him.  

3.  The applicant provides: 

* DD Forms 214 (Certificate of Release or Discharge from Active Duty), ending on 30 September 2009, 3 February 1993, and 1 September 1987
* DA Form 31 (Request for Authority for Leave)
* Attachment orders
* Retirement orders


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 served in the Regular Army (RA) and the U.S. Army Reserve (USAR), the applicant again enlisted in the RA on 16 March 1994.  He served through multiple reenlistments and attained the rank/grade of master sergeant 
(MSG)/E-8. 

3.  On 16 April 2009, the U.S. Army Human Resources Command published his retirement orders with an effective date of 30 September 2009. 

4.  He signed out on permissive temporary duty from 26 June to 5 July 2009 and on transition leave on 6 July 2009. 

5.  He retired on 30 September 2009 and he was placed on the Retired List on 1 October 2009 in his retired rank/grade of MSG/E-8.  He was credited with over 21 years of creditable active service.  

6.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education 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:

   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.

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 September 2009.  He states that prior to retirement he did not 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 September 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while on active duty 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 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)                                         AR20130015107



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130015107



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1