IN THE CASE OF:	  

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20140015223 


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, in effect, an exception to policy to transfer his 
Post-9/11 GI Bill education benefits (TEB) to his dependent children.

2.  The applicant states he was not made aware that a TEB request had to be made prior to leaving active duty.  His intention was to request a TEB because he already has a Master of Business Administration (MBA) and his children will need the benefit.  He contends that his failure to request a TEB prior to leaving active duty was not his fault.  He argues that he was told to contact the Department of Veterans Affairs (VA) when his children were ready to attend college.  He only found out now after talking to college officials.

3.  The applicant provides copies of:

* Transcript from Troy State University, Bachelor of Applied Science, dated 18 December 2002
* Transcript from Baker College, MBA, dated from Fall 2004 to Summer 2006

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 31 January 1986.  He served through multiple reenlistments in a variety of assignments and he attained the rank/grade of sergeant first class (SFC)/E-7.

3.  On 1 March 2010, the applicant submitted his request for voluntary retirement.

4.  On 16 June 2010, the applicant's request for retirement was approved.  It was to be effective 1 April 2011.

5.  The applicant retired on 31 March 2011 and was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 April 2011.  He completed 25 years and 
2 months of active duty service.

6.  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 education benefits to his or her dependent on or after 1 August 2009.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program.  Department of Defense (DOD), the Army, and the VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits.

7.  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.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he requested a TEB prior to his retirement because he was not made aware that it had to be done before leaving active duty.

2.  The applicant was fully eligible to transfer his education benefits under the TEB provision prior to retirement, but he did not do so.  The program was implemented in July 2009.  His retirement was approved in June 2010 with an effective date of 1 April 2011.  Prior to retirement, he did not apply for the transfer of benefits while serving on active duty.

3.  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.

4.  It is recognized that during the initial implementation of this 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.  However, by the time the applicant's request for retirement was approved, much, if not all, of this confusion had been rectified.

5.  The applicant had sufficient time to submit his application and to verify that his application was submitted in the proper manner. There is no evidence showing he exercised due diligence.

6.  The requirements of this program are set in the law and any changes to the law are not within the purview of this Board.  There is neither an error nor an injustice in his case and, as such, there is no basis for granting the applicant's 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)                                         AR20140015223



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ABCMR Record of Proceedings (cont)                                         AR20140015223



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