IN THE CASE OF:
BOARD DATE: 14 April 2015
DOCKET NUMBER: AR20140013778
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 to his family member(s) under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he was under the impression that he can transfer his Post 9/11 GI Bill benefits to his family members when the time came for them to attend college. The time has now come but he is unable to do so because he is now retired. He was not properly counseled and he would have transferred the benefits if he had known.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).
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's records show he was born on 30 September 1962.
3. Having had prior service, he enlisted in the Arkansas Army National Guard (ARARNG) on 10 August 2001. He served through multiple extensions in a variety of assignments. He attained the rank/grade of first sergeant (1SG)/E-8.
4. He was mobilized to active duty on multiple occasions including:
* 12 October 2003 to 3 April 2005, he served in Iraq from March 2004 to March 2005
* 1 October 2007 to 3 January 2008
* 4 January 2008 to 26 February 2009, he served in Iraq from March 2008 to December 2008
5. He was honorably released from his last period of active duty on 26 February 2009 and he was transferred to the control of his State ARNG unit.
6. On 11 September 2009, ARARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).
7. He was honorably discharged from the ARNG and transferred to the Retired Reserve on 1 October 2009. His NGB Form 22 shows he completed 24 years, 8 months, and 1 day of total service for retired pay.
8. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, Public Law 110-252, section 3020, limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve. Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service. A Soldier must currently be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009.
9. 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. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program.
DISCUSSION AND CONCLUSIONS:
1. The applicant was fully eligible to transfer his educational benefits under the TEB provision prior to retirement, but it does not appear he did so. The program was implemented in July 2009 and he retired on 1 October 2009. Prior to retirement, he did not apply for the transfer of benefits while still serving in the Selected Reserve.
2. DOD, the VA, 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 several 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 benefits. 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 also have been confused regarding the implementation instructions and may not have conducted proper counseling.
4. The applicant's retirement date was 1 October 2009. It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while still in the Selected Reserve 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 his retirement/transfer to the Retired Reserve.
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 Post-9/11 GI Bill benefits to his eligible family member(s) 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) AR20140013778
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