BOARD DATE:	    22 October 2015

		DOCKET NUMBER:  AR20150000172 


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 eligible children under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states he needs to have his unused education benefits credited to his son, BKF.  The TEB is required to be completed while on active duty.  To the best of his knowledge, that was completed at the Fort Leavenworth Education Center on 21 July 2010, over five weeks from his discharge from active service.  On that date, he electronically submitted a transfer request using the Defense Manpower Data Center (DMDC) milConnect system.  He thought he had transferred benefits to his wife and both sons at that time.  He was recently informed he neglected to check one block on the e-form, thus negating the transaction and TEB.  He strongly believes denying his family these benefits is a substantial consequence for such an inadvertent error.  He was eligible for the Post-9/11 GI Bill when he, in good conscience, submitted the TEB request.

3.  The applicant provides:

* a memorandum of supporting evidence, dated 19 December 2014
* Submit Transfer Request, dated 21 July 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 August 2010
* Department of Veterans Affairs (VA) application for TEB, dated 30 June 2014

* college invoices, dated 11 August 2014
* VA TEB denial letter, dated 10 September 2014
* an email to the U.S. Army Human Resources Command (HRC), dated           6 October 2014
* a memorandum of disagreement to the VA, dated 7 October 2014
* an email from the VA, dated 13 November 2014
* an email from HRC, dated 1 December 2014

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 entered active duty on 18 June 1983 and served as a commissioned officer.  He was honorably retired, in the rank of colonel, on        31 August 2010.  His DD Form 214 shows he completed over 27 years of net active service.

3.  He provides a copy of his electronic DMDC milConnect TEB request, dated 21 July 2010.  This form shows he attempted to transfer 1 month of educational benefits to his wife and two sons.  However, this request was not processed because he did not check the block indicating that he wanted to transfer the Post-9/11 GI Bill Chapter 33.  There was an error message at the top of the page stating he was still required to select the election type of Post-9/11 GI Bill Chapter 33. 

4.  He provides a series of documents that show his son applied to use his education benefits and the VA denied this request in a letter dated 
10 September 2014.  

5.  An advisory opinion, dated 1 September 2015, was obtained from the HRC Incentives Branch.  The advisory official recommended approval of the applicant's request and stated:

	a.  The applicant accessed the TEB website on 21 July 2010, but did not properly submit the request when he failed to select the education benefit program, "Post-9/11 GI Bill."  The TEB website alerted the applicant to the error by showing the error message "Election Type of Post-9/11 GI Bill is required" at the top of the TEB website screen.  The TEB website alerted the applicant to his error of failing to properly complete the e-form.  The TEB request was never submitted because the applicant did not act upon the error message; as such, no technical or clerical error existed.  Additionally, the applicant did not access the TEB database again to verify the submission and approval prior to his retirement nor did he inquire with the Army GI Bill team or his local education office regarding the status of his request, or to obtain documentation to show his request had been approved.  

	b.  Although the applicant's attempt to access TEB was unsuccessful, HRC recommended granting the applicant relief based upon a combination of the 
following three reasons [note:  The recommendation for relief is based upon a combination of three reasons, not a singular reason.  Any of the three reasons as stand-alone reasons would not be considered sufficient justification for HRC to recommend granting relief.]:

		(1)  The applicant provided a TEB website screen printout showing the TEB request attempt.

		(2)  The applicant attempted the TEB request on 21 July 2010, which was within the first year of the program.  However, the request did not process in the TEB website due to an error, in that the applicant did not recognize the error message at the top of the TEB website screen.  

		(3)  The applicant would not have incurred a TEB service obligation if the request had been properly submitted and approved.  

6.  On 22 June 2009, the Department of Defense (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, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, and meets other specified service criteria is eligible for the Post-9/11 GI Bill.

7.  The DOD, Army, and the Department of Veterans Affairs (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 educational benefits.
8.  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.  A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her family members.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was fully eligible to transfer his educational benefits under the TEB provision of the Post -9/11 GI Bill prior to retirement, and in fact, he attempted to transfer his education benefits in the TEB website on 21 July 2010.  The applicant retired on 31 August 2010.

2.  A Soldier must meet various criteria to qualify to transfer benefits to an eligible dependent.  The applicant met all of the criteria and would not have incurred a service obligation as a result of the transfer of his education benefits.

3.  His retirement date was 31 August 2010.  It is reasonable to presume that had he been aware of his failure to properly complete the TEB e-form and the need to follow up to ensure his request was approved prior to his retirement date, he would have taken the necessary steps to ensure the process had reached its desired conclusion.  

BOARD VOTE:

__X______  __X______  _X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 properly completed and submitted his application on 



21 July 2010 and the Army approved his request to transfer his Post-9/11 GI Bill benefits to his eligible family members prior to 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)                                         AR20150000172



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ABCMR Record of Proceedings (cont)                                         AR20150000172



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