BOARD DATE: 5 June 2014
DOCKET NUMBER: AR20130017282
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 educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states that during his pre-retirement briefings, he was neither aware nor informed of the requirement to transfer the educational benefits before he retired. His retirement window fell during a period where many separating Soldiers were not informed about the transfer eligibility. He received his briefing in June 2009 but retired on 30 September 2009.
3. The applicant provides his retirement orders and DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 September 2009.
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 was appointed as a Regular Army officer and entered active duty on 18 June 1989. He served in a variety of assignments and he attained the rank of lieutenant colonel.
3. On 17 April 2009, the Fort Myer Military Community published his retirement orders with an effective date of 30 September 2009.
4. He retired on 30 September 2009 and he was placed on the Retired List on 1 October 2009 in the rank of lieutenant colonel. He was credited with over 20 years of active service.
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 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 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 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 educational 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 was not aware of the requirements and therefore did not apply for the transfer of benefits.
2. DOD, the Department of Veterans Affairs, 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 in 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 serving on active duty and obtain some sort of written confirmation that it was successfully transferred 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 his Post-9/11 GI Bill benefits to his family member(s) prior to his 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) AR20130017282
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ABCMR Record of Proceedings (cont) AR20130017282
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