IN THE CASE OF:  	  

		BOARD DATE:	21 July 2015  

		DOCKET NUMBER:  AR20140021035 


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 correction of his military records to show he transferred his educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states, in effect, he was not allowed to accomplish a TEB to his dependents.  He was a casualty of an unjust process that occurred during the initial implementation of the Post-9/11 GI Bill.  Due to the limited time between implementation of the Post-9/11 GI Bill, on 1 August 2009, and his retirement on 28 February 2010, he was not afforded sufficient information or an opportunity to apply for and receive a Certificate of Eligibility and request transfer of his benefits to his dependents.  He received a Post-9/11 GI Bill Certificate of Eligibility from the Department of Veterans Affairs (VA) on 21 May 2010.  He applied to transfer his benefits on 9 February 2011, but he was denied on 18 March 2011.  He was told that he could not transfer his educational benefits because he was retired.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 18 May 2004
* Headquarters, 88th Regional Support Command Fort McCoy, WI Orders 10-048-00004, dated 17 February 2010
* a letter, dated 21 May 2010, from the VA, St. Louis Regional Office, St. Louis, MO
* a letter, dated 9 February 2011, from the VA
* a letter, dated 18 March 2011, from the VA St. Louis Regional Office
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.  On 5 May 1987, he enlisted in the U.S. Army Reserve and he served continuously.  On 7 June 2007, he received his notification of eligibility for retired pay at age 60 (20-year letter).

4.  Headquarters, 88th Regional Support Command Fort McCoy, WI Orders 
10-048-00004, dated 17 February 2010, transferred him to the Retired Reserve effective 28 February 2010.

5.  On 21 May 2010, the VA certified the applicant was entitled to benefits for an approved program of education or training under the Post-9/11 GI Bill.

6.  On 9 February 2011, the VA notified the applicant his claim for benefits had been received.

7.  On 18 March 2011, the VA denied his dependent's claim for educational benefits because the applicant was not approved by the Department of Defense to transfer entitlement. 

8.  Department of Defense (DOD) Directive-Type Memorandum (DTM) 09-003, dated 22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members.

	a.  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:

		(1)  has at least 6 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election, or

		(2)  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.

		(3)  For Soldiers eligible for retirement on or before 1 August 2009, no additional service is required.

	b.  An individual approved to transfer entitlement to educational assistance may transfer such entitlement to the individual's family member(s) only while serving as a member of the Armed Forces.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was eligible to transfer benefits to his dependents at any time after 1 August 2009.  He had attained 20 qualifying years of service on 4 May 2007.  According to DOD DTM 09-003 he would not have been required to incur any additional service from the TEB request date. 

2.  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 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 have also been confused regarding the implementation instructions and may not have conducted proper counseling.  

3.  The DOD, 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.  

4.  The law requires a member to be in an active status at the time he/she requests the TEB.  The applicant is not in an active status and he did not leave military service during the implementation phase (first 60 to 30 days) of the program.  

5.  In view of the above, there is no basis upon which to grant relief in this case.

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)                                         AR20140021035





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ABCMR Record of Proceedings (cont)                                         AR20140021035



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