IN THE CASE OF:
BOARD DATE: 24 February 2015
DOCKET NUMBER: AR20140010087
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 his dependents.
2. The applicant states during terminal leave prior to his retirement he was not able to be notified of the requirement to extend his service to be able to transfer his Post 9/11 GI Bill benefits to his dependents. His retirement date of
30 September 2009 was approved in January 2009.
3. The applicant provides no additional evidence in support of his application.
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. He previously had 4 months and 11 days of active service and 1 year,
7 months, and 10 days of inactive service in the U.S. Army Reserve.
3. On 28 December 1989, he enlisted in the Regular Army and served continuously until his retirement.
4. On 30 September 2009, he was retired by reason of having sufficient service for retirement and placed on the Retired List the following day.
5. Department of Defense (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 modify the number of months of the transferred entitlement for existing dependents, or revoke transfer of entitlement while serving in the Armed Forces.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows the applicant was fully eligible to transfer his education benefits to his dependents under the TEB provision of the Post 9/11 GI Bill prior to retirement. However, he contends that he was on terminal leave and he was unable to receive counseling concerning the transfer of his educational benefits to his dependents. The TEB provision of the Post 9/11 GI Bill was implemented in July 2009. The applicant retired on 30 September 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 on active duty.
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 30 September 2009. He was not required to obtain additional service in order to TEB to his dependents. It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits to each of his eligible 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 eligible 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) AR20140010087
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ABCMR Record of Proceedings (cont) AR20140010087
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