IN THE CASE OF:
BOARD DATE: 24 July 2014
DOCKET NUMBER: AR20130021559
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 an exception to policy to transfer educational benefits to his spouse under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he was not properly notified of the transfer entitlement of benefits to his spouse. He was originally scheduled for separation in December 2008. However, he was involuntarily extended under the stop loss policy in order to deploy. When he returned from deployment, he was quickly processed out of the Army. At that time, he was unaware of the entitlement.
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 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 enlisted in the Regular Army for 4 years on 29 December 2004 and he held military occupational specialty 21E (Construction Equipment Operator). He served in Kuwait/Iraq from 28 May 2008 to 4 July 2009.
3. He was honorably released from active duty on 30 October 2009 by reason of having completed his required active service. He had been retained on active duty for 306 days as essential to national security. He completed 4 years,
10 months, and 2 days of active service and he was fully eligible to reenlist.
4. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, Public Law 110-252, section 3020, limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve. Although significant measures were taken 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. A Soldier must currently be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009.
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:
* 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
* 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
* 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 served on active duty from 29 December 2004 to 30 October 2009. He completed 4 years, 10 months, and 2 days of active service. He neither applied for the transfer of educational benefits while on active duty nor was he qualified to do so.
2. He needed to have completed at least 6 years of service in the Armed Forces on the date of election and agreed to serve 4 additional years in the Armed Forces from the date of election. He neither completed the minimum years of service nor agreed to serve the additional service remaining requirements. Therefore, he was ineligible to transfer this benefit.
3. DOD, the 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ____X____ ____X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
____________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) AR20130021559
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ABCMR Record of Proceedings (cont) AR20130021559
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