IN THE CASE OF:	  

		BOARD DATE:	  1 October 2015

		DOCKET NUMBER:  AR20150002690 


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 his educational benefits to his children or spouse under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states upon his retirement he was not given the information regarding transferring his education benefits to his spouse or children.  The exception to the rule is the date at which he retired.  He wishes to transfer his benefits under the Post-9/11 GI Bill to his son, L___, his daughter, L_____, or to his spouse, Katherine.  He is a disabled Veteran with a 60 percent service-connected rating.  Per a conversation with a Department of Veterans Affairs (VA) representative, there was a brief period of time when information was not provided to unit commanders.  This was during the time of his separation and he was not aware of this until his child was eligible and accepted to college.

3.  The applicant provides:

* his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 30 September 2009
* Twenty Year Letter, dated 14 July 2004
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 11 October 2007
* Orders, dated 15 January 2010
* Army National Guard (ARNG) Retirement Points History Statement, dated 29 February 2012
* two pages of progress notes, dated 25 June 2015
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’s records show, having had prior enlisted service in the ARNG, he was appointed as a Reserve second lieutenant in the Michigan ARNG (MIARNG) on 13 September 1996.  On 24 July 2006, he was promoted to the rank of major (MAJ).

3.  He provides a DD Form 214 that shows he served on active duty as a member of the MIARNG in support of Operation Iraqi Freedom from 30 June 2006 to 11 October 2007 and served in Kuwait/Iraq from 25 September 2006 to 8 August 2007.  He completed 1 year, 3 months, and 12 days of creditable active service during this period of service and had 6 years, 10 months, and 1 day of prior active service.

4.  On 7 December 2008, he completed a DD Form 93 (Record of Emergency Data), wherein he indicated he was married, his spouse’s name was Katherine, and he had two children; a son, L___, born on 30 May 1997, and a daughter, L_____, born on 10 October 1999.

5.  His record contains Orders 268-101, dated 25 September 2009, issued by the Department of Military and VA, MIARNG, honorably separating him from the ARNG effective 30 September 2009 and transferring him to the Retired Reserve.

6.  The NGB Form 22 he was issued for this period of service shows he was transferred to the Retired Reserve in the rank of MAJ, he completed 13 years and 18 days of net Reserve service during this period of service, and he had 25 years of total qualifying service for retired pay.

7.  His record does not contain a Preseparation Counseling Checklist that would show if he received transition counseling, to include counseling on educational benefits prior to his transfer to the Retired Reserve.  It is presumed he had three eligible family members enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) system prior to his ARNG separation date of 30 September 2009.

8.  The applicant provides Orders 015-042, dated 15 January 2010, issued by Department of Military and VA, MIARNG, placing him on the Retired List effective 1 October 2009.

9.  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 or 20 qualifying years of Reserve service.

10.  A member of the Armed Forces is eligible to transfer education benefits to family members if he or she:

	a.  has eligible family members enrolled in DEERS.  Children lose eligible family member status upon turning 21 years of age or at marriage.  Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried; and

	b.  initially requests the transfer through the 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 VA.  Once the benefits are transferred, children may use the benefits up to age 26.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to his separation from the MIARNG and placement in the Retired Reserve on 30 September 2009 and his subsequent placement on the Retired List on 1 October 2009, but he did not do so.  The program was implemented on 1 August 2009 and he was separated from the MIARNG on 30 September 2009.

2.  DOD, the Army, and the VA 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.  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 benefits.  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 program implementation.  Similarly, officials at some education centers may also have been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  There is no evidence that shows the applicant was counseled on his eligibility to transfer his educational benefits to his family members at the time he was separated from the ARNG and placed on the Retired List on 1 October 2009.  It is reasonable to presume that had he been aware of the procedure to transfer his benefits while serving in an active Reserve status, he would have done so.

5.  He meets the criteria, as a matter of equity, to have his records corrected to show he transferred his education benefits to his family members in a timely manner prior to his 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 the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer his Post-9/11 GI Bill benefits to his eligible family members prior to his separation from the ARNG on 30 September 2009, 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)                                         AR20150002690





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ABCMR Record of Proceedings (cont)                                         AR20150002690



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