BOARD DATE: 23 October 2014
DOCKET NUMBER: AR20140004823
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 under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill to his family members.
2. The applicant states, in effect, as an Active Guard Reserve (AGR) Soldier, he was unaware of the rules and requirements regarding the TEB of his Post -9/11 GI Bill at the time of his retirement. It was not discussed during his retirement briefing.
3. The applicant provides no additional evidence.
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 retired from the Army National Guard (ARNG) as an AGR Soldier on 31 October 2009, due to sufficient service for retirement in the rank/grade of chief warrant officer four/CW4. He completed over 20 years of creditable service.
3. 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 any member of the Armed Forces on or after 1 August 2009, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, and meets other specified service criteria is eligible for the Post-9/11 GI Bill.
4. 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 on or after 1 August 2009. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her family members.
5. The DOD, Army, and the Department of Veterans Affairs (VA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows the applicant was fully eligible to transfer his educational benefits under the TEB provision of the Post -9/11 GI Bill prior to retirement, but he did not do so. The program was implemented 1 August 2009. The applicant retired on 31 October 2009.
2. The DOD, VA, and the Army conducted a massive public campaign that generated major communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent.
3. Nevertheless, during the initial implementation of this new program, many Soldiers in all grades were confused regarding their eligibility and/or the procedure to apply for such benefits. 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 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 31 October 2009. It is reasonable to presume that had the applicant been aware of the procedures 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 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 his Post-9/11 GI Bill benefits to his eligible family members 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) AR20140004823
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