IN THE CASE OF:  

		BOARD DATE:  2 October 2014	  

		DOCKET NUMBER:  AR20140003676 


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 transfer of his education benefits to his son under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

   a.   prior to his retirement, he contacted the Department of Veterans Affairs (VA) by phone regarding the transfer of his remaining GI Bill benefits to his son;
   
   b.  he was told there would be no problem transferring his education benefits; however, he had to use the benefits within ten years; and
   
   c.  during a recent check, he found out he was no longer eligible for this benefit although the regulatory criteria verifies he qualified at that time.
   
3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 93 (Record of Emergency Data)


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’s DD Form 214 shows he enlisted in the Regular Army on 17 August 1989 and continuously served until he was retired from active duty in the rank of sergeant first class on 30 November 2009.  He completed 20 years and 9 days of creditable active duty service.

3.  The applicant's military pay record confirms he took 97 days terminal leave from 26 August through 30 November 2009.

4.  Department of Defense (DOD) established the criteria for the TEB provision of the Post-9-11 GI Bill on 22 November 2009.  On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.

5.  The Office of the Deputy Chief of Staff, Army G-1, Enlisted Professional Development Branch, Washington, D.C. has previously stated that although significant measures were taken to disseminate information concerning the transferability of unused Post 9/11/ GI Bill benefits, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer the benefits prior to leaving military service.

6.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute 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.


7.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 
20 qualifying years as computed under Title 10, U.S. Code, section 12732.  No additional service required Service members who have an approved retirement date after 1 August 2009 and before 1 July 2010.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his education benefits under the TEB prior to retirement, but he did not do so.  The program was implemented in August 2009 and he retired on 30 November 2009 after completing just over 20 years of active duty service.  Although significant measures were taken to disseminate information on the transferability of unused Post 9/11/ GI Bill benefits, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirements. 

2.  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.

3.  He began his transition leave in August 26, 2009 and retired on 30 November 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 eligible dependent(s) prior to his 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)                                         AR20140003676





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ABCMR Record of Proceedings (cont)                                         AR20140003676



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