IN THE CASE OF:
BOARD DATE: 22 May 2014
DOCKET NUMBER: AR20130016055
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 record to show his education benefits were transferred to his eligible family members in a timely manner in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he was on transition leave (from 21 July to 30 September 2009) at the time the program was implemented and he was not informed that he was eligible to transfer unused educational benefits to eligible family members prior to retirement.
3. The applicant provides no documentary evidence.
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 served in the Regular Army from 6 June 1989 to 30 September 2009 until he was discharged due sufficient service for retirement after completing more than 20 years of creditable active service.
3. 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, in pertinent part, 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.
4. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance for the administration of the program.
a. A Soldier must initially request to transfer benefits on the DOD's TEB online database. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for Department of Veterans Affairs (VA) access. The respective family member must then submit an application for VA educational benefits (VA Form 22-1990e (Application for Family Member to Use Transferred Benefits)) to request the use the benefits.
b. Changes to the number of months allocated to family members can be made at any time, to include once the Soldier leaves military service, provided the service member allocates at least 1 month of benefits prior to separation.
5. The Department of the Army Office of the Deputy Chief of Staff, G-1, previously recommended administrative relief for applicants in similar cases who left active duty within 90 days of the implementation of the program.
DISCUSSION AND CONCLUSIONS:
1. The program was implemented on 1 August 2009. The available evidence shows the applicant was eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to retirement.
2. His retirement date was 30 September 2009. He did not complete an application in the online data base to transfer his educational benefits to his
family members under the TEB provision of the Post-9/11 GI Bill. Due to transitioning from military the second month after implementation of the program, it is plausible that he was unaware of the requirement to complete an application to transfer his educational benefits while he was still on active duty.
3. Therefore, in the interest of equity, it would be appropriate to correct his record to reflect he applied to transfer his educational benefits to his family members under the TEB provision of the Post-9/11 GI Bill prior to 30 September 2009.
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 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 eligible family members prior to retirement, provided all other program eligibility criteria are met.
_______ _ _______ ___
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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