IN THE CASE OF:
BOARD DATE: 21 October 2014
DOCKET NUMBER: AR20140004852
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 education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to dependent.
2. The applicant states:
* there was no clear guidance on transferability to his dependents during the time of his out-processing and transitioning
* transferability stared on 29 June 2009; however, the effective date of any transfer was no earlier than 1 August 2009 and at the time, he had already out-processed Fort Sill, OK and relocated to Montgomery, AL
3. The applicant provides:
* DA Form 2339 (Application for Voluntary Retirement)
* two DA Forms 31 (Request and Authority for Leave)
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 enlisted in the Regular Army on 6 August 1987. He attained the rank/grade of staff sergeant (SSG)/E-6.
3. On 31 August 2009, he was retired by reason of sufficient service for retirement. He was placed on the Retired List in his retired rank of SSG/E-6 on 1 September 2009. He completed 22 years and 25 days of creditable active service.
4. The applicant provided a copy of his DA Form 2339 that shows he requested a retirement date of 1 September 2009. He also provided two DA Forms 31 that show his status as follows:
* permissive temporary duty, Montgomery, AL, from 10 July through 19 July 2009
* transition leave, Montgomery, AL, from 20 July through 31 August 2009
5. 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 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 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.
6. 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 was fully eligible to transfer his educational benefits under the TEB prior to retirement, but he did not do so. The program was implemented in July 2009 and the applicant retired on 31 August 2009.
2. The DOD, Department of Veterans Affairs, and the Army conducted a massive public campaign plan 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. The applicant's retirement date was 31 August 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 family members 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) AR20140004852
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ABCMR Record of Proceedings (cont) AR20140004852
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