IN THE CASE OF:	   

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140006277 


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 Post-9/11 GI Bill education benefits to his spouse.

2.  The applicant states:

   a.  There is an error in his Post-9/11 GI Bill transferability records.  His records should reflect the transfer of his benefits to his spouse.  He completed the transfer in eBenefits while on active duty on 22 July 2011 at 16:18 hours and now it does not show it.  The system indicated the transaction was "successful."

   b.  On December 2011, he returned to eBenefits to upgrade the benefits to 36 months and the transaction indicated again that it was "successful."  When his wife applied for the benefits in February 2014 they received a letter indicating that they were rejected because there was no sign that he had transferred his benefits to her.  When he checked eBenefits he discovered that his transfer had dropped off the system sometime between 2011 and 2014.  Therefore, he is appealing to this Board to please correct this error.  

3.  The applicant provides copies of the following:

* 1981 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* eBenefits Account Activity page
* 2011 separation orders
* 2012 DD Form 214

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army (RA) on 17 July 1979.  He was discharged on 17 September 1981 to accept a commission in the RA.  He was commissioned in the RA on 22 September 1981. 

3.  He provided copies a copy of an eBenefits Account Activity page, ranging from 1 January 2011 to 2 April 2014, which showed the following:

* 1 July 2011 at 11:13 am – he successfully applied for veterans benefits online
* 22 July 2011 at 4:14 pm – he successfully applied for veterans benefits online
* 22 July 2011 at 4:18 pm - he successfully transferred education benefits

4.  He retired on 31 January 2012 and he was credited with completing 30 years, 4 months, and 9 day of net active service.

5.  In an advisory opinion, dated 12 January 2015, the Section Chief, Finance and Incentives Team, U.S. Army Human Resources Command (HRC), recommended disapproval of the applicant’s request.  The HRC official stated:

   a.  Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  Further, Public Law 110-252 limited eligibility to transfer unused benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  

   b.  The applicant stated he submitted a Transfer of Education Benefits (TEB) request, but he did not provide sufficient documentation supporting that statement (i.e., documents showing "submitted" or "approved" in the "Transfer Status" area located in the upper left-hand corner of the TEB website."  Instead, he provided a document he stated was from eBenefits (a joint Department of Veterans Affairs (VA) and Department of Defense (DoD) website) indicating he visited several applications whereby he successfully logged in and logged out.  

	c.  The document provided showed a search function as follows, "Date Range from 01/01/2011 to 04/02/2014."  That document was not printed at the time of the stated TEB interest in July 2011 to January 2012.  The document showed he displayed an interest in TEB and the VA website by accessing the sites.  The document he provided showed accessing the TEB application was "Successful"; however, that did not mean the applicant successfully submitted a TEB request. 

   d.  There are numerous Soldiers who access the TEB website and do not submit TEB requests.  The TEB website had been in use by Soldiers for at least two years as of the date the applicant accessed the TEB website in July 2011 and had been accessed by over 100,000 Soldiers at that point (of which 85,000 had been approved).  The applicant had six months from July 2011 to his retirement in January 2012 to view the TEB website after he stated he had submitted a TEB request.  He did not follow-up viewing the TEB website and did not print sufficient information supporting the claim.

   e.  If the Army Review Boards Agency provided relief based upon a successful visitation of the TEB website and not submitting a TEB request, know that rationale would deem others who show a successful visitation to the TEB website as eligible although they may not have submitted a TEB request.

6.  The advisory opinion was provided to the applicant for acknowledgement/
rebuttal on 14 January 2015.  In his rebuttal, dated 4 February 2015, the applicant stated:

   a.  He strongly disagreed with the Finance and Incentives team regarding the statement that he did not follow-up with viewing the TEB website, because he did follow-up in December 2011.  At that time it had indicated his spouse's name with a status of the transfer as "approved.  It was his understanding that the approved transfer was complete.

   b.  Between 2007 to February 2012, he had serious medical issues which he was not fully aware of until August 2011.  He underwent emergency surgery which included more than a 4-week hospital stay and over 5 months of medical leave requiring in-home nursing care.  Prior to being admitted to the hospital in Maryland, he was admitted to the infirmary during his last tour in Iraq during 2007.  The medical team did not know how serious the condition was at that time.
   c.  Due to his condition, in November 2011 he submitted a request for approval of his retirement date from 31 January 2012 to 31 August 2012 due to medical reasons.  He did not receive a response or call until January 2012 indicating that he was past his mandatory retirement date and that he should submit for a medical retirement.  He submitted all his paperwork regarding his hospital stay.  He heard nothing until 4 days before his retirement date which 2 of those days were the weekend.  A signed form from the doctor was requested.  His retirement was processed for 31 January 2012.  Therefore, from November 2011 through January 2012 he was fully engaged with HRC trying to resolve this retirement extension issue.

   d.  With all that was happening with both his medical condition and constant follow-up concerning his retirement extension, he spent the majority of his time recovering from surgery and dealing with HRC on his extension, with the exception of checking the status of my transfer in December 2011.  Without those distractions he would have diligently followed-up on his actions to ensure that he had properly submitted his request on the TEB and if not, he would have taken certain steps to contract someone to ensure it was properly submitted correctly.  He provided copies of the following:

* Disability Certificate
* DA Form 31 (Request and Authority for Leave)
* Request for Change of Approved Retirement Date memorandum

7.  On 29 June 2009, the 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 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 a 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 of DoD) or statute from committing to 4 additional years and agrees to service for the maximum amount of time allowed by such policy or stature; or
   
   c.  Is or becomes 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 service or 20 qualifying years of Reserve service.
8.  The policy further states the Secretaries of the Military Department will provide active duty participants and members of the Reserve Components with qualifying active service individuals pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain record for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his education benefits to his spouse under the TEB provision of the Post-9/11 GI Bill prior to retirement, but it does not appear he did so.  The program was implemented in July 2009 and he retired on 31 January 2012.  

2.  The documentation he submitted with his application shows his interest in the TEB and VA website by his accession of the sites.  Sufficient documents to support his claim that he submitted a TEB request who have been a document showing "submitted" or "approved" in the "Transfer Status" area located in the upper left-hand corner of the TEB website."  Notwithstanding his response to the advisory opinion, if appears he did not follow-up on viewing the TEB website and did not print sufficient documents supporting his request.  

3.  Prior to retirement, there is insufficient evidence showing he properly applied for the transfer of benefits while on active duty and/or he was given false information by a reliable source about the rules of transferring education benefits.

4.  The applicant's service and his sincerity are not in question.  His last day in an active status was 31 January 2012 which was almost 3 years after the implementation of the program.  Therefore, he had plenty of time to submit his application and/or to verity that his application was submitted in the proper manner.  There is no evidence he exercised due diligence.  While there may have been some confusion during the early stages after the implementation, he retired well after the program was implemented.

5.  His contentions concerning his medical condition and retirement extension are acknowledged.  Regrettably, he did not properly apply for the transfer of his benefits while still on active duty.  By law, this must have been done prior to his separation.  There are no provisions for transferring education benefits after the individual has separated.  
6.  There is neither an error nor an injustice in his transfer of benefits processing. Therefore, he is not entitled to the 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 that 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)                                         AR20140006277





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ABCMR Record of Proceedings (cont)                                         AR20140006277



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