IN THE CASE OF:
BOARD DATE: 14 April 2015
DOCKET NUMBER: AR20140014926
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 entitlement to transfer his educational benefits to his daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states, in effect, that he was not informed that he was required to transfer his education benefits under the Post-9/11 GI Bill to his eligible dependents prior to his retirement from the Army. He contends that even if he had been aware of the requirement, he was so busy prior to his discharge that he may not have had time to do so. Neither he nor his daughter should be penalized.
3. The applicant provides no additional documents.
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 February 2007 and he was discharged due to disability with severance pay on 27 March 2011.
3. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 1 month, and 14 days of active service and
7 years, 6 months, and 25 days of inactive service.
4. 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 individual 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 for the maximum amount of time allowed by such policy or statute; or
c. is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013. A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service.
5. The policy further states the Secretaries of the Military Departments will provide counseling on Post-9/11 GI Bill benefits to active duty participants and members of the Reserve Components with qualifying active duty service prior to separation or release from active duty and document accordingly.
6. During the implementation phase of the program (the first 90 days), many Soldiers were unaware of the requirements for transferring Post-9/11 GI Bill education benefits. The Army, DOD, and VA initiated a massive public campaign that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and transfer of benefits.
7. Requests for TEB to eligible dependents must be submitted through a Defense Manpower Data Center (DMDC) web application.
DISCUSSION AND CONCLUSIONS:
1. His request to correct his record to show he was eligible to transfer his Post-9/11 GI Bill benefits has been carefully considered. However, the governing law is very specific regarding the transfer of benefits.
2. Information on the Post-9/11 GI Bill was widely available when the applicant was medically discharged approximately 20 months after the implementation of the program, and, as part of his separation processing, he was required to receive counseling on his Post-9/11 GI Bill benefits. He has not provided any documentary evidence indicating he was improperly counseled or that he was never counseled.
3. The available evidence shows he was eligible to apply for TEB at any time from 1 August 2009 until his medical discharge on 27 March 2011 (although he may have incurred an additional service obligation). There is no evidence that he followed the established procedure by submitting an application through the DMDC TEB web application while he was on active duty. This was a well-established and well-publicized procedure, and it remains the only way to apply for TEB.
4. In the absence of evidence indicating the applicant was unfairly deprived of the opportunity to apply for TEB prior to being discharged, there is an insufficient basis upon which to grant the requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____x___ ____x___ ___x ____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
___________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) AR20140014926
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ABCMR Record of Proceedings (cont) AR20140014926
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