IN THE CASE OF:	  

		BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20140001662 


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 dependent under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states, in effect:

* at the time of his retirement, the Fort Campbell Army Career Alumni Program (ACAP) knew very little about the TEB provision of the Post-9/11 GI Bill
* he was told he was qualified without any additional service requirement since he was retiring with more than 20 years of service on or after 1 August 2009
* when he was out-processing he was told he could request a transfer at any time
* he has a need to transfer some of the benefits to his child and is now being told that he should have requested the transfer when he was serving on active duty
* he stayed in the Army specifically until 1 August 2009 to ensure he would qualify and he simply wants to be provided the opportunity to transfer some of the benefits to his only child
* the Post-9/11 GI Bill TEB was a new program at the time of his retirement and it is quite possible ACAP was not well informed on the specific details of the program
* he has two degrees and wants to provide his daughter the same opportunity for an education from the Post-9/11 GI Bill which he earned after 20-plus years of service and paid $1,200.00 into
* he still serves the Department of Defense as a civilian and he knows how difficult it can be to interpret new policies
* he hopes the Army takes care of its own and does not prevent his child from an education because of a piece of paper he was not aware he had to file before he retired

3.  The applicant provides a copy of 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.  Having sufficient service for retirement, the applicant was honorably retired on 31 July 2009 and placed on the Retired List on 1 August 2009.

3.  Department of Defense (DOD) Directive-Type Memorandum 09-003, dated 22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members.

	a.  eligible individuals include members of the Armed Forces on or after 1 August 2009 who, at the time of the approval of their request to transfer entitlement to educational assistance under this section, are eligible for the 
Post-9/11 GI Bill; or 

	b.  have at least 6 years of service in the Armed Forces on the date of election and agree to serve 4 additional years in the Armed Forces from the date of election; or

	c.  have at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, are precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agree to serve for the maximum amount of time allowed by such policy or statute; or

	d.  were or became 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.)  For those individuals who had an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service was required.  For those individuals eligible for retirement:

* on or after 1 August 2009 and before 1 August 2010, 1 year of additional service was required
* on or after 1 August 2010 and before 1 August 2011, 2 years of additional service was required
* on or after 1 August 2011 and before 1 August 2012, 3 years of additional service was required

4.  The policy further states the Secretaries of the Military Departments will provide counseling on Post-9/11 GI Bill benefits to active duty participants and members of the Reserve Components with qualifying active duty service prior to separation or release from active duty and document accordingly.

5.  A Soldier must be currently serving on active duty or as a member of the Selected Reserve at the time of transfer of educational benefits to his or her family members (on or after 1 August 2009).

6.  Requests for TEB to eligible dependents must be submitted through a Defense Manpower and Data Center web application.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an exception to policy to transfer educational benefits to his family member under the TEB provision of the Post-9/11 GI Bill was carefully considered.

2.  The applicant was neither serving on active duty nor in the Selected Reserve at the time this program was implemented on 1 August 2009.  By law, he is not eligible to participate in the program.

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 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)                                         AR20140001662



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ABCMR Record of Proceedings (cont)                                         AR20140001662



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