BOARD DATE: 6 February 2014
DOCKET NUMBER: AR20130021541
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 education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his dependent(s).
2. The applicant states:
* he retired with sufficient time on 1 September 2009; prior to his retirement, he completed his pre-retirement processing at MacDill Air Force Base
* part of his out-processing included the election to transfer the Post 9/11 GI Bill benefits to his dependents but for some reason this was not recorded in his military records
* prior to his retirement, he logged in to the TEB website and submitted the transfer of benefits online
* in December 2013, when he logged in to MilConnect to confirm the status he found out the benefits were never transferred
* he was advised by the Education Office that there were problems with the website at the time he transferred the benefits
* the information about the Post 9/11 GI Bill had not been properly finalized or disseminated
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 applicants 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 applicants 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 Reserve commissioned officer of the Army on 10 June 1989. He entered active duty on 15 October 1989. He served in a variety of assignments and he attained the rank of lieutenant colonel (LTC).
3. He retired on 31 August 2009 and he was placed on the Retired List in his retired rank of LTC on 1 September 2009. He was credited with a total of 20 years, 2 months, and 21 days of active service.
4. 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 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 education benefits under the TEB prior to retirement. The program was implemented in August 2009 and he retired on 31 August 2009.
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 31 August 2009. 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 his retirement, provided all other program eligibility criteria are met (emphasis added).
_______ _ 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) AR20130021541
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ABCMR Record of Proceedings (cont) AR20130021541
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