IN THE CASE OF:
BOARD DATE: 24 September 2015
DOCKET NUMBER: AR20150002094
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 transfer of education benefits to his wife and daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states, in effect:
* while still on active duty, he elected to transfer his education benefits received under the Post-9/11 GI Bill to his wife and daughter
* due to the phasing of the transferability of the Post-9/11 GI Bill, he had to serve one additional year from the date of his election; the period was one year because, at the time of his election, he had 19 years of service
* he used the MILCONNECT website to transfer his education benefits in the Fall of 2009 (MILCONNECT is a website provided by the Defense Manpower Data Center (DMDC) which offers service members and their family members access to personal information, healthcare eligibility, and other information to include Post-9/11 GI Bill TEB eligibility)
* he understood he would incur an additional active duty service obligation (ADSO) and he adjusted his retirement date accordingly
* prior to his retirement, he checked the MILCONNECT site just to verify transferability; he should have printed out a screenshot to keep a record of this but he did not
* in January 2014, he was helping his daughter prepare packets for college and, upon checking MILCONNECT he found she was shown as no longer eligible
* in an effort to resolve this, he contacted DMDC, who referred him to the U.S. Army Human Resources Command (HRC)
* HRC referred him back to DMDC and he was then told he only recourse was to submit this application as DMDC had no record of his election
3. The applicant provides no additional documentary evidence.
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. Following his graduation from the U.S. Military Academy at West Point, NY, he was appointed as an Armor commissioned officer in the Regular Army. He executed his oath of office on 31 May 1990. He served in a variety of positions and rose to the rank/grade of lieutenant colonel/O-5.
3. On 31 January 2011, the applicant retired by reason of sufficient service for retirement. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 20 years and 8 months of net active service this period.
4. His records contain no evidence he transferred his Post-9/11 GI Bill benefits to any members of his family.
5. On 22 June 2009, the Department of Defense (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.
DISCUSSION AND CONCLUSIONS:
1. The applicant was fully eligible to transfer his education benefits under the TEB prior to retirement.
2. The DOD, VA, and the Army conducted a public campaign that generated communications through military, public, and social media venues. Since the applicant was on active duty at the time of program implementation in August 2009, and continued on active duty through his retirement in 2011, he had sufficient time to submit his application and validate that MILCONNECT correctly showed the status of his dependents.
3. The requirements of this program are set in the law and any changes to the law are not within the purview of this Board. There is no provision within the law which would permit the Board to grant the applicant the relief he requests.
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.
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