IN THE CASE OF:  	  

		BOARD DATE:  10 September 2015	  

		DOCKET NUMBER:  AR20150000263 


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 show he allocated 34 months to his son Colton, 1 month to his son Grayson, and 1 month to his wife Charlene under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states in August 2009 he transferred GI Bill education benefits his dependents as follows:  his son Colton 34 months, his son Grayson 1 month, and his wife Charlene 1 month.  In accordance with the training received at the time, he transferred at least 1 month to allow future flexibility.  He followed the directions and transferred the benefits as stated so he could adjust the benefits after retirement as needed.  It was his intent to give his Post 9/11 GI Bill benefits to his two sons who had yet to attend college and his spouse.  He never intended to give all of his benefits to only one of his children.  The error came to his attention because Colton is a high school senior and he logged on to milConnect Education to transfer benefits to Grayson before he submitted for Colton's Certificate of Eligibility.  Because of the error, he cannot transfer benefits to Grayson, who is equally eligible.

3.  The applicant provides two DD Forms 1172 (Application for Uniformed Services Identification Card, DEERS Enrollment), dated 8 November 2011.

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 10 May 1986, he was commissioned a second lieutenant in the U.S. Army Reserve (USAR).  He was ordered to active duty effective 13 October 1986.

3.  On 10 March 1998, he was commissioned a major in the Regular Army, Aviation Branch.  He served continuously on active duty from 10 October 1986 until his retirement on 31 October 2011.

4.  Email from the Army Continuing Education Division, U.S. Army Human Resources Command, dated 27 July 2015, states the applicant submitted a TEB request for 36 months to his son, Colton.  An image attached to the email shows his wife, Charlene 0 months, his son Colton 36 months, and his son Grayson 
0 months.  It shows his request was approved on 17 August 2009.

5.  On 31 October 2011, he was retired with 25 years and 21 days of active service.

6.  The DD Forms 1172, dated 7 November 2011, show his wife and two sons are enrolled in DEERS.

7.  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.  Eligible individuals include a member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of their request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill.  For Soldiers eligible for retirement on or before 1 August 2009 there was no additional service required. 

	 b.  An individual transferring an entitlement to educational assistance under this section shall:

* designate the dependent or dependents to whom such entitlement is
			being transferred
* designate the number of months of such entitlement to be transferred
			to each dependent

	 c.  An individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement to the individual's family member only while serving as a member of the Armed Forces.

	 d.  An individual may add new dependents, modify the number of months of the transferred entitlement for existing dependents, or revoke transfer of entitlement while serving in the Armed Forces.

	 e.  An individual may add new dependents only while serving in the Armed Forces.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that on 17 August 2009 he transferred benefits under the TEB provision of the Post-9/11 GI Bill and he allocated 34 months to Colton, 1 month to Grayson, and 1 month to Charlene.  

2.  He was fully eligible to transfer his education benefits under the TEB on 
17 August 2009.  No additional service obligation was required in that he had over 20 years of active service at the time of his TEB.

3.  According to DTM 09-003, dated 22 June 2009, an individual had to designate at least 1 month to each dependent he or she wished to transfer education benefits to.  This could only be done while the member was still serving in the Armed Forces.

4.  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 by heavy use of the DOD website and the lack of proper log-in credentials.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.  

5.  It is reasonable to presume that if he had been aware of the discrepancy before he retired he would have been able to reallocate the months as he had originally intended.  However, he did not discover the error until he tried to make a change to transfer benefits to Grayson after his retirement.  Therefore, as a matter of equity, his records should be corrected to show when he transferred his education benefits he allocated 34 months to Colton, 1 month to Charlene, and 1 month to Grayson.
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 TEB request allocating 34 months to Colton, 
1 month to Charlene, and 1 month to Grayson and the Army approved his request prior to his retirement.




      _______ _   _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)                                         AR20150000263





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ABCMR Record of Proceedings (cont)                                         AR20150000263



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