IN THE CASE OF:
BOARD DATE: 19 August 2014
DOCKET NUMBER: AR20140000396
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 approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to his dependents.
2. The applicant states he began his terminal leave on 6 July 2009 and retired from the Regular Army on 25 September 2009. He argues that he met all of eligibility criteria for TEB. At the time of his out-processing from the United States Military Academy (USMA), which was his last duty station, no one was aware of the TEB process. Army personnel did not follow instructions which may have been due to his date for terminal leave being so close to the start date of the TEB program. He learned on 10 December 2013 that he could submit this request. Prior to then, he had, without success, tried to get help from the Army, Department of Veterans Affairs (VA), and Congressional assistance. He further states that at the time of his retirement he already held a Masters Degree. He had no need of additional educational assistance. However, he has two children who could use this benefit. If the program had been properly managed at USMA at the time of his leave, what sane person would fail to transfer the benefit?
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 25 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. After completing over 20 years of Regular Army service, the applicant retired from the Army on 25 September 2009 due to physical disability.
3. The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives, 2642. In July 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.
4. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members. A service
member may execute a transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. General eligibility criteria are 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.
5. The program guidance stipulates that service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 do not incur any additional required service.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests approval of TEB under the Post-9/11 GI Bill to his dependents.
2. The applicant had over 20 years of service upon his retirement, no additional service requirement, no evidence of any adverse action, and he would have been eligible to transfer the benefit to either his spouse or children if he had transferred it before he left the service.
3. 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 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. His retirement date was 25 September 2009. 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 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 dependents 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) AR20140000396
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