IN THE CASE OF:	  

		BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140006714 


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

2.  The applicant states, in effect, that upon his release from the Temporary Disability Retired List (TDRL) to a retired status, he was not given the opportunity to transfer his education benefits to his son.  However, prior to being placed on the TDRL on 3 August 2009, he was not informed he was eligible to transfer his Post-9/11 GI Bill to his dependents and was not aware of the requirement to do so before he was placed on the TDRL.  

3.  The applicant provides his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), Department of Veterans Affairs (VA) Rating Decision), and DA Form 199 (Physical Evaluation Board (PEB) Proceedings).

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 had prior active and Reserve service, the applicant enlisted in the Puerto Rico Army National Guard (PRARNG) on 4 April 1996.  He was assigned to the 770th Military Police Company, Aguadilla, PR.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 28 March 2006.

3.  His records contain a memorandum, subject:  Request for Expiration of Term of Service (ETS) Extension Waiver, dated 7 April 2008, wherein the Commander, 101st Troop Command, Puerto Rico National Guard, recommended approval of his voluntary extension for 1 year.  He stated the applicant's ETS was 2 April 2008 and he was pending a final determination by a medical evaluation board (MEB).  On 18 April 2008, the approving authority approved the extension.

4.  He was honorably released from the ARNG on 3 August 2009 in the rank of SGT by reason of temporary disability, placed on the TDRL, and transferred to the U.S. Army Reserve Control (USAR) Group (Retired Reserve).  The NGB Form 22 he was issued shows he completed13 years and 4 months of net Reserve service during this period of service and 17 years and 4 months of total qualifying service for retired pay.

5.  His record does not contain a Preseparation Counseling Checklist that would show if he received transition counseling, to include counseling on educational benefits prior to his transfer to the Retired Reserve.  It is not known how many eligible family members he had enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) system prior to his retirement date of 3 August 2009.

6.  On 22 May 2013, an informal PEB convened at Fort Sam Houston, TX, and confirmed his unfitting disabilities of degenerative arthritis of the lumbar spine, radiculopathy of the right lower extremity, and radiculopathy of the left lower extremity.  The PEB found he remained unfit to perform the duties required of his grade, assigned a combined 50 percent disability rating, and that his condition was stable enough to make a final adjudication.   The PEB recommended he be placed on the permanent disability retired list (PDRL) with a 50 percent disability rating.  

7.  Order D149-65, dated 29 May 2013, issued by the U.S. Army Physical Disability Agency, removed him from the TDRL and placed him on the Retired List effective 29 May 2013.

8.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states an eligible member is 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:

	a.  has at 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 or DOD) or statute from committing to 4 additional years, and agrees to serve the maximum amount of time allowed by such policy or statute; 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 duty or 20 qualifying years of Reserve service.

9.  A member of the Armed Forces is eligible to transfer education benefits to family members if he or she:

	a.  has eligible family members enrolled in DEERS.  Children lose eligible family member status upon turning 21 years of age or at marriage.  Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried; and

	b.  initially requests the transfer through the DOD TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the Department of Veterans Affairs (VA).  Once the benefits are transferred, children may use the benefits up to age 26.

10.  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, 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 provision of the Post-9/11 GI Bill prior to his placement on the TDRL, but he did not do so.  The program was implemented in July 2009 and he was placed on the TDRL on 3 August 2009.

2.  DOD, the Army, and the VA 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 at 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 also have been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  There is no evidence that shows the applicant was counseled on his eligibility to transfer his educational benefits to his family members at the time he was placed on the TDRL on 3 August 2009.  It is reasonable to presume that had he been aware of the procedure to transfer his benefits while serving in an active Reserve status, he would have done so.

5.  In view of the foregoing and 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 his placement on the TDRL, 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)                                         AR20140006714





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140006714



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1