IN THE CASE OF:	   

		BOARD DATE:	      9 April 2015

		DOCKET NUMBER:  AR20140015550 


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 his unused education benefits to his dependent under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states in August 2009 he was reading a Veterans of Foreign Wars magazine where he learned about transferring his education benefits to his son.  After receiving his retirement orders in August 2009, he completed all of the forms and he visited the Department of Veterans Affairs (VA) to inquire about transfer procedures.  He was told by the VA representative that they did not know what was going to happen and to return in a few months.  He informed them that he was retiring on 12 September 2009; however, they informed him that they had a backlog of about 750 cases and they did not have the information at the time.  When he went back in December 2009, he was referred to the TEB website.

3.  The applicant provides orders transferring him to the Retired Reserve and a letter from the VA addressed to his Member of Congress.

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 was transferred to the Retired Reserve on 12 September 2009, after completing over 27 years of qualifying service for a non-regular retirement.  His record does not contain any documentation that indicates he transferred or attempted to transfer his education benefits under the TEB provision of the Post-9/11 GI Bill prior to his date of retirement.  

3.  The Post-9/11 GI Bill went into effect on 1 August 2009.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.

4.  On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her 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 from 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.  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's request for correction of his record to show he was eligible to transfer his Post-9/11 GI Bill benefits has been carefully considered.

2.  The law governing the transferability of unused Post-9/11 GI Bill benefits places legal limitations on transferability.  Members must register and complete transfer prior to leaving the service.

3.  The program was implemented on 1 August 2009.  The Army, DOD, and VA conducted a massive public information campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  Soldiers needed to meet two criteria to qualify to transfer their unused education benefits to an eligible dependent:  (a) they must be on active duty or a member of the Selected Reserve at the time of the transfer (provided they do not have an adverse action flag); and (b) they must have at least 6 years of qualifying service in the Armed Forces (active duty and Selected Reserve) and agree to serve at least 4 additional years from the date of request, unless retirement eligible.

4.  During the initial implementation phase of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the necessary procedures one must follow when applying to transfer their unused education benefits.  This confusion was exacerbated with 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 90 days of the program implementation, as well as by a lack of familiarity with TEB provision policies by education centers and separation counselors.  The U.S. Army Human Resources Command acknowledges that Soldiers who retired during the implementation phase may not have had the necessary information to properly transfer their unused education benefits.

5.  The evidence shows the applicant was fully eligible to transfer his unused education benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement date of 12 September 2009.  Given the initial uncertainty regarding the program during its infancy, it is not improbable that he lacked the complete information necessary to make a proper election with respect to transferring his unused education benefits.

6.  It is reasonable to conclude that had he known of the proper procedures to follow to successfully transfer his unused education benefits, he would have complied with them prior to retirement on 12 September 2009.  

7.  The Army has generally granted relief to members who left the service within the first 90 days after implementation of the program on 1 August 2009.  In this case, the applicant's last day in the service was 12 September 2009.  

8.  Therefore, as a matter of equity, his records should be corrected to show he made a timely application to transfer at least 1 month of his unused education benefits to his eligible dependents, in accordance with the TEB provisions of the Post-9/11 GI Bill, prior to his transfer to the Retired Reserve on 12 September 2009.

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 Post-9/11 GI Bill benefits to his eligible family members prior to placement in the Retired Reserve, 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)                                         AR20140015550



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ABCMR Record of Proceedings (cont)                                         AR20140015550



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