IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140009842 


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 correction of his military records to show he transferred his education benefits to his son under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states while he was mobilized during August and September 2009 transfer procedures were unclear.  From October 2009 to December 2009 he was extended on memorandum instead of orders to retire, correct pay errors and use accrued leave days.  He had problems getting an identification card and TEB for his son due to his information not being correct in Defense Enrollment Eligibility Reporting System (DEERS).  

3.  The applicant provides:

* two modification orders to his mobilization orders
* two emails, dated 5 and 6 December 2008
* two memoranda, dated 28 April 2009 and 3 November 2009 from U.S. Army Human Resources Command (HRC) 
* his retirement orders
* a memorandum, dated 15 April 2009, from Headquarters, First Army to HRC
* an email, dated 29 May 2009, to the Defense Finance and Accounting Service (DFAS)


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.  On 7 June 1986, he was appointed a Reserve commissioned officer of the Army in the grade of second lieutenant.  He served continuously until his retirement.

3.  HRC Orders A-03-707968, dated 28 March 2007, ordered him to active duty for 5 months and 23 days with an end date of 18 September 2007.

4.  HRC Orders A-03-707968A01, dated 17 September 2007, amended the above orders to read 6 months and 22 days active duty with an end date of 
18 October 2007.

5.  87th Division Orders 07-305-00004, dated 1 November 2007, amended 87th Division Orders 07-299-00004, dated 26 October 2007, to read 349 days active duty to report 19 October 2007 instead of 365 days active duty to report 
22 October 2007.

6.  87th Division Orders 08-249-00008, dated 5 September 2008, amended the above orders to read 714 days of active duty instead of 349 days.  

7.  A memorandum, dated 15 April 2009, from Headquarters, First Army to HRC requested an extension on active duty for the applicant to allow him to expend accrued leave.  His accrued leave balance as of 15 April 2009 was 85 days.

8.  A memorandum from HRC, dated 28 April 2009, approved his extension on active duty for the purpose of expending accrued leave, post deployment mobilization respite absence (PDMRA), and out-processing.  The new release from active duty date was no later than 30 October 2009.

9.  In an email, date 29 May 2009, DFAS was requested to audit the applicant’s leave account.  According to the email, he should have had 90.5 days of leave.

10.  A memorandum from HRC, dated 3 November 2009, approved his extension on active duty for the purpose of expending accrued leave, PDMRA, and out-processing.  The new release from active duty date was no later than 
31 December 2009.

11.  Orders 219-0005 issued by Headquarters, Fort McPherson, GA, dated 7 August 2009, retired him from active duty effective 31 December 2009 and placed him on the Retirement List on 1 January 2010.

12.  DOD Directive-Type Memorandum (DTM) 09-003, dated 22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  

	a.  Eligible individuals include a member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of their 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 1 August 2009 through 1 August 2013 and agrees to serve any specified additional period of service.  For those individuals who had an approved retirement date after 
1 August 2009 and before 1 July 2010, no additional service was required.  	

	b.  An individual transferring an entitlement to educational assistance under this section shall:

* designate the dependent or dependents to whom such entitlement is
			being transferred
* designate the number of months of such entitlement to be transferred
			to each dependent

	c.  An individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement to the individual's family member only while serving as a member of the Armed Forces.

	d.  An individual may add new dependents only while serving in the Armed Forces.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was fully eligible to transfer his education benefits under the TEB prior to retirement.  He contends he was unable to transfer benefits due to the discrepancies in DEERS because his active duty had been extended by memorandum instead of orders.  The program was implemented on 1 August 2009.  The applicant retired on 31 December 2009.  

2.  According to DTM 09-003, dated 22 June 2009, an individual had to designate at least 1 month to each dependent he or she wished to transfer education benefits to.  This could only be done while the member was still serving in the Armed Forces.

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 benefit.  This confusion was exacerbated by 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 31 December 2009.  His release from active duty was extended twice to enable him to take his accrued leave.  Therefore, it is reasonable to conclude he was on transition leave during at least part of the period in which he was eligible to transfer his education benefits under the TEB prior to his retirement.  It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits to each of his dependents 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 his Post 9/11 GI Bill benefits to his dependents 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)                                         AR20140009842



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ABCMR Record of Proceedings (cont)                                         AR20140009842



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