BOARD DATE:	  30 September 2014

		DOCKET NUMBER:  AR20140001171 


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 and children under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states, based on good faith actions on his part, he thought he was properly enrolled to transfer his Post-9/11 GI Bill education benefits to his spouse and children.  On 21 July 2009, he believed he had completed the enrollment of his spouse and children for the transfer of his Post-9/11 GI Bill benefits.  Based on the screen shot he made at the time, he believed the transfer was effective 1 August 2009.  He did not follow up on this until after his retirement, when he reached out to the Defense Military Data Center (DMDC) to inquire as to the lack of any sort of confirmation on their site.  He did not think that once he had received the confirmation that he would need to continuously monitor his status.  He believes this constituted a good faith effort because the screen shot gave the appearance that the action was completed. 

3.  The applicant provides:

* screenshot 
* email to his spouse, dated 21 July 2009
* Post 9/11 GI Bill TEB fact sheet
* email DMDC, dated 31 July 2013 to 7 January 2014 
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* Orders Number 13-108-00003, dated 18 April 2013

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.  Having had prior enlisted service in the Army National Guard (ARNG), the applicant was appointed as a Reserve commissioned officer on 13 May 1983.  He served in a variety of assignments in the ARNG and the U.S. Army Reserve and he was promoted to colonel on 29 April 2008.  

3.  On 26 June 2003, the U.S. Army Human Resources Command (HRC),        St. Louis, MO, issued him a Notification of Eligibility for Retired Pay at Age 60      (20-Year Letter).  

4.  His record contains a DD Form 214 for the period 13 June 2009 to 22 August 2010, which shows at the time of his release from active duty he had already completed 14 years, 6 months, and 9 days of prior active service and 13 years, 
8 months, and 11 days of inactive service.

5.  He provided an email he sent to his wife containing a screenshot of his Post-9/11 GI Bill TEB elections, dated 21 July 2009.  This screenshot shows he elected 36 months of benefits for each of his eligible dependents.

6.  Orders Number 13-108-00003, issued by Headquarters, 63rd Regional Support Command, Mountain View, CA on 18 April 2013, assigned him to the Retired Reserve effective 30 June 2013.

7.  He provided a series of email transmissions dated from 31 July 2013 to 
7 January 2014.  These email transmissions show he contacted the HRC Post-9/11 GI Bill TEB mail box and HRC personnel could not verify his elections in the DMDC data base where elections are made.  


8.  Public Law 110-252 and its amendment Public Law 111-377 identifies the qualification to receive the Post 9/11 GI Bill, one of which is that the service member must have performed on or after 11 September 2001 in order to be eligible for the Post 9/11 GI Bill.  Public Law 110-252 establishes legal requirements on the transferability of unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  

9.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states 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 for the maximum amount of time allowed by such policy or statute, or

	c.  is or becomes retirement eligible during the period from 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.

10.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  The applicant appears to have attempted to transfer his education benefits to his eligible family members on or around 21 July 2009.  At this time, he was serving on active duty.  Additionally, he was transferred to the Retired Reserve on 30 June 2013 after completing over 30 years of qualifying service.  

2.  The Post 9/11 GI Bill TEB program was not implemented until 1 August 2009. However, it is reasonable to presume, based on the screen shots and email he has provided, that Soldiers were permitted to utilize this data base prior to the actual implementation date and, since there were still some bugs in the system, his information was not properly saved or maintained in the DMDC system.  

3.  He was on active duty at the time he attempted to transfer his benefits and at the time the program was officially implemented.  Therefore, as a matter of equity his records should be corrected to show he did so on 1 August 2009.

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 eligible family members on 1 August 2009, 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)                                         AR20140001171





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ABCMR Record of Proceedings (cont)                                         AR20140001171



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