IN THE CASE OF:  	  

		BOARD DATE:  21 May 2015	  

		DOCKET NUMBER:  AR20140017584 


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

2.  The applicant states:

    a.  He retired from the U.S. Army Reserve (USAR) on 24 March 2010 after serving 27 years.  His service included 21 months on active duty in support of Operation Enduring Freedom.

    b.  He is eligible for the Post-9/11 GI Bill because he spent 21 months as a mobilized Reservist serving at the Pentagon. 

    c.  When he retired on 24 March 2010 it was his understanding that he could transfer his Post-9/11 GI Bill benefits to his children after his retirement.

     d.  On 20 April 2012 he tried to transfer his benefits to his dependents.  It was then that he found out he could not transfer his benefits because the transfer had to be completed prior to his retirement.
    
     e.  He is entitled to a waiver because he was never told or provided any information pertaining to a requirement to transfer his benefits prior to his retirement.

3.  The applicant provides orders, a partial print out of his retirement points, and information pertaining to the Post-9/11 GI Bill.

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.  After having prior service in Regular Army, the applicant was appointed as a Reserve Commissioned Officer in 1992 in the USAR.  He attained the rank of lieutenant colonel. 

3.  His record contains a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 30 June 2004, which states he had completed the required years of qualifying reserve service and was eligible for retired pay upon application at age 60.

4.  His record contains a DD Form 214 showing he was on active duty from 
17 March 2006 to 14 June 2007.

5.  Orders Number C-03-004560, issued by the U.S. Army Human Resources Command on 25 March 2010, show he was reassigned to the Retired Reserve on 24 March 2010.

6.  Public Law 110-252 limits the 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.  

7.  On 22 June 2009, DoD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.  The policy states 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was eligible to transfer his education benefits under the TEB prior to retirement, but he did not do so.  The program was implemented in     July 2009, with an effective date of 1 August 2009, and he was placed in the Retired Reserve on 24 March 2010.  Prior to his placement in the Retired Reserve, he did not apply for the transfer of benefits while on active duty or in the Selected Reserve.

2.  He admits he did not he attempt to transfer his educational benefits to his dependents prior to his separation because he was not aware that he had to transfer his benefit prior to his retirement.  Notwithstanding his sincerity, DOD, the VA, and the Army conducted a public campaign plan that generated communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  While there may have been some confusion during the early stages after the implementation, the applicant was placed in the Retired Reserve on                    24 March 2010, almost 7 months after the program was implemented.

3.  The requirement to transfer the benefit while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board.  Since there is no evidence that shows the applicant attempted to transfer the benefit while in an active status, as required by law, there is an insufficient evidentiary basis for granting his 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)                                         AR20140017584



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ABCMR Record of Proceedings (cont)                                         AR20140017584



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