BOARD DATE: 2 April 2015
DOCKET NUMBER: AR20140012544
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 her military records to show she transferred her education benefits to her dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states when she applied for retirement from the U.S. Army Reserve (USAR) there was no out-processing or out-briefings to inform or instruct her how to establish or ensure this benefit was available after her effective date of retirement. She was not counseled about the requirements for the TEB for the Post 9/11 GI Bill at anytime during her service other than to say that she qualified for it. It was not until she attempted to get the Post 9/11 GI Bill benefits for her son that she was told he was ineligible because she did not elect to transfer her benefit prior to her separation from the service.
3. The applicant provides three DD Forms 214 (Certificate of Release or Discharge from Active Duty) with dates of separation 29 June 1988,
30 November 2006, and 22 June 2008.
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. She enlisted in the USAR on 24 September 1987 and served continuously to 3 December 2009.
3. On 25 October 2007, she received her notification of eligibility for retired pay at age 60 (20-year letter).
4. Headquarters, 377th Theater Sustainment Command, Belle Chasse, LA Orders 09-308-00015, dated 4 November 2009, transferred her to the Retired Reserve effective 3 December 2009.
5. 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 her education benefits under the TEB prior to retirement. She contends she was never counseled on the requirements of the TEB prior to leaving the service. Based on her date of retirement she would not have been required to serve any specified additional period of service.
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. These problem areas would have been even greater for members of the USAR who only drilled once a month.
4. It is reasonable to presume that had the applicant been aware of the procedure to transfer her benefits to her dependents while in an active status 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.
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 her application and the Army approved her request to transfer her Post 9/11 GI Bill benefits to her dependents prior to her 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.
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