IN THE CASE OF:
BOARD DATE: 29 September 2015
DOCKET NUMBER: AR20150002816
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 records to show that, prior to retiring from active duty, he transferred educational benefits to his dependent under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states around the August 2009 timeframe, either the Department of Defense (DoD) or the Department of Veteran Affairs (VA) allowed all military personnel retiring around this time to go in and fix transfer benefits to dependents as there were some issues with the processing of the applications. He did not notice the errors until recently. He intended to transfer 24 months to his son and keep 1 year for himself to finish his master's program in 2011. A message went out that he was not aware of and he should not be penalized for the lack of information. He asks for assistance in transferring his education benefit to his son.
3. The applicant provides a copy of his 30 November 2009 DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 retired from the Regular Army as a master sergeant (pay grade E-8) on 30 November 2009 and he was transferred to the U.S. Army Reserve Control Group (Retired) on 31 November 2009.
3. There is no evidence that the applicant completed a request to transfer educational benefits to any family member before leaving military service.
4. There is no evidence that the applicant's family members made a previous claim to the VA for educational benefits.
5. Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members. The Public Law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members. Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.
6. The Department of the Army, Department of Defense, and the VA initiated a public campaign that generated communications through military, public, and social media venues. Information on the Post-9/11 GI Bill and subsequent transfer of entitlements was published well in advance of the implementation date of 1 August 2009. However, many Soldiers who left service during the first 90 days of the program were not aware of the requirement to transfer their benefits prior to leaving military service.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was fully eligible to transfer his educational benefits under the Post-9/11 GI Bill transferability program prior to retirement.
2. Notwithstanding the fact that he was on active duty and nearing retirement eligibility at the very time of the massive publicity campaign about the TEB program, there is no evidence that the applicant transferred or attempted to transfer education benefits to a family member while he was on active duty for 4 months after the program was initiated.
3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.
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) AR20150002816
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ABCMR Record of Proceedings (cont) AR20150002816
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