BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140017813 


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

2.  The applicant states:

* the policies surrounding the transfer of benefits were in transition at the time of her retirement in September 2009 
* when she attended her pre-separation briefing, the counselors were not aware of the transfer policy and she was not properly briefed
* she signed out on transition leave on 5 July 2009 and retired on 30 September 2009 
* prior to her retirement, she spent 3 years as a liaison in the District of Columbia (DC) area in a unit that disconnected her from daily contact with fellow officers
* the Board has previously granted relief to others who were in the same situation 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 2 Printouts regarding the Post 9/11 MGIB
* Post 9/11 GI Bill Implementation Policy
* DOD Directive-Type Memorandum 09-003, 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.  Having had prior service in the U.S. Army Reserve, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 2 May 1987.

3.  She entered active duty on 18 August 1988 and served as a Regular Army commissioned officer in a variety of stateside or overseas assignments.  She attained the rank of lieutenant colonel (LTC).

4.  Prior to her retirement, she had undergone a pre-separation briefing in April 2009 at an Army installation in the DC area.  She checked the "Yes" block in item 13a (Education/Training - Education Benefits (MGIB)) of her DD Form 2648 (Preseparation Counseling Checklist) in anticipation of her upcoming retirement.  Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc.

5.  She retired on 30 September 2009 and she was placed on the Retired List in her retired grade of LTC on 1 October 2009.  She was credited with a total of 21 years, 1 month, and 13 days of active service.

6.  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 on or after 1 August 2009.  The individual must: 

	a.  Have been in an active duty status or in the Selected Reserve on or after 
1 August 2009.  The applicant retired on 30 September 2009.  

	b.  Have 6 years of eligible service to transfer the benefit to a spouse and 
10 years to transfer the benefit to children.  

	c.  Have eligible dependents enrolled in the Defense Eligibility Enrollment Reporting System (DEERS).  It is presumed the applicant had an eligible family member or members enrolled in DEERS.  

	d.  Agree to complete any additional service obligation.  If the applicant transferred her benefits prior to leaving military service, she would not have incurred additional service obligation because he had sufficient service to qualify for the transfer.  She also had an honorable discharge and no adverse action.

	e.  Initially request the transfer through the Department of Defense (DOD) TEB online database.  This database was operational on 29 June 2009.  Once approved in the TEB database, the information is automatically relayed to the Department of Veterans Affairs (VA).  The respective family members must then submit an application for VA benefits.   

	f.  Changes to the number of months allocated to family members can be made anytime to include once a member leaves the military, provided the member allocates at least 1 month of benefits prior to separation.  If the member allocates zero months and subsequently leaves military service, the member is not authorized to transfer unused benefits.

	g.  The VA is restricted to pay for education benefits compensating no more than one retroactive year from the date a claim is received by the VA.  There is no evidence that the applicant made a previous claim to the VA.  

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

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 and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

9.  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.  The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009.  However, the policy does apply to those retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer her education benefits under the TEB prior to retirement, but she did not do so.  The program was implemented in August 2009 and she retired on 30 September 2009.  Prior to retirement, she did not apply for the transfer of benefits while on active duty.

2.  The DOD, 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 various criteria to qualify to transfer benefits to an eligible dependent.

3.  Nevertheless, during the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  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 60 to 90 days of the programs implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  The applicant's retirement date was 30 September 2009.  It is reasonable to presume that had the applicant been aware of the procedure to transfer her benefits while on active duty she would have done so.  Therefore, as a matter of equity, her records should be corrected to show she did so in a timely manner prior to her effective date of retirement.

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 her application and the Army approved her request to transfer Post 9/11 GI Bill benefits to her family member(s) prior to her 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)                                         AR20140017813





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ABCMR Record of Proceedings (cont)                                         AR20140017813



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