IN THE CASE OF:
BOARD DATE: 5 February 2015
DOCKET NUMBER: AR20140009785
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 her educational benefits to her dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states, in effect, in September 2009 when she retired from active duty it was not clearly explained that she had to transfer her educational benefits to her dependents prior to separation from the military. Had she been properly informed of the transfer policy, she would have transferred the benefits to her dependents prior to retirement.
3. The applicant provides:
* Retirement Orders 340-0013
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 2656 (Data for Payment of Retired Personnel)
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 14 September 1978 and she held military occupational specialty 92Y (Unit Supply Specialist). She served in a variety of assignments and she attained the rank/grade of master sergeant (MSG)/E-8.
3. On 5 December 2008, the Fort Lewis Installation Management Command published her retirement orders with an effective date of 30 September 2009.
4. She retired on 30 September 2009 and she was placed on the Retired List on 1 October 2009 in the rank/grade of MSG/E-8. She was credited with 20 years and 17 days of active service.
5. At the time of retirement, she was single; but she had two dependent children, Chantell, born in 1992, and Charmaine, born in 1990.
6. 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 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
DISCUSSION AND CONCLUSIONS:
1. The applicant was fully eligible to transfer her educational benefits to her dependents under the TEB provisions of the Post 9/11 GI Bill, prior to retirement. The program was implemented in August 2009 and she retired on 30 September 2009. She states that prior to retirement she was not aware of the requirements and therefore did not apply for the transfer of benefits.
2. DOD, the Department of Veterans Affairs, and the Army conducted massive public campaigns 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 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.
4. The applicant's retirement date was 30 September 2009. It is reasonable to presume that had the applicant been aware of the procedure to transfer her benefits while serving on active duty and obtain some sort of written confirmation that it was successfully transferred she would have done so. Therefore, as a matter of equity, her records should be corrected to show she did so in a timely manner prior to her effective date of retirement, provided all other program eligibility criteria are met.
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 her application and the Army approved her request to transfer her Post-9/11 GI Bill benefits to her family member(s) 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) AR20140009785
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