IN THE CASE OF:	   

		BOARD DATE:	  3 June 2014

		DOCKET NUMBER:  AR20130016696 


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 to be allowed to transfer his educational benefits to his dependents.

2.  The applicant states he was not aware of the transferability of his educational benefits prior to his actual retirement date.  Some aspects of transferability were discussed but no information or actual criteria was available at the time of his briefing.

3.  The applicant provides a three-page Transfer of Educational Benefits (TEB) information sheet.

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, a career Soldier with 20 years of service, received his retirement orders on 10 March 2009 and retired effective 30 September 2009. 

3.  The applicant's military records show he completed a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members) on 12 May 2009, requesting counseling to include post-service educational benefits. 

4.  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 on the administration of the program.  

5.  Public Law 110-252, section 3319, provides the eligibility requirements for TEB.  A service member may execute a TEB only while serving as an active member of the Armed Forces.  The Department of Veterans Affairs is responsible for final determination of entitlements and educational benefits under this program.  The general eligibility criteria is as follows:

	a.  Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  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 if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and agrees to serve a specified additional period, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732.  For service members eligible for retirement on 1 August 2009 – no additional service is required.

7.  In similar cases, the Education Incentives Branch, U.S. Army Human Resources Command, has recommended approval of an applicant's request only if an applicant left military service within 90 days following implementation of the TEB Program.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for retirement was approved in May 2009, two months prior to the release of the TEB implementation policy and three months prior to the start date of the program.

2.  DOD, the VA, and the Army conducted a massive public campaign plan 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 in all grades were confused regarding their eligibility and/or the procedure to apply for such benefits.  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 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 available evidence shows the applicant was fully eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement, but he did not do so.

5.  The applicant had over 20 years of service upon retirement, would not have incurred an additional service requirement.  He was eligible to transfer the benefits if he had done so before he left the service.

6.  The applicant commenced his transition leave during the initial implementation period for the TEB.  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 the evidence presented is 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 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.


ABCMR Record of Proceedings (cont)                                         AR20130016696





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ABCMR Record of Proceedings (cont)                                         AR20130016696



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