IN THE CASE OF: BOARD DATE: 27 August 2013 DOCKET NUMBER: AR20130002231 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 record to show his education benefits were transferred to his eligible family members in a timely manner in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states he was on transition leave (12 July to 30 September 2009) at the time the program was implemented and he was not informed that he was eligible to transfer unused educational benefits to eligible family members prior to his retirement. It was only later that he learned of this program from fellow retirees with college-aged children. 3. The applicant provides his 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. On 30 September 2009, the applicant retired from the Regular Army by reason of sufficient service for retirement after completing more than 20 years of creditable active service. 3. 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 an eligible individual 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, in pertinent part, 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. 4. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance for the administration of the program. a. A Soldier must initially request to transfer benefits on the DOD's TEB online database. Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for Department of Veterans Affairs (VA) access. The respective family member must then submit an application for VA educational benefits (VA Form 22-1990e (Application for Family Member to Use Transferred Benefits)) to request to use the benefits. b. Changes to the number of months allocated to family members can be made at anytime, to include once the Soldier leaves military service, provided the service member allocates at least 1 month of benefits prior to separation. 5. The Department of the Army Office of the Deputy Chief of Staff, G-1, previously recommended administrative relief for applicants in similar cases who left active duty within 90 days of the implementation of the program. DISCUSSION AND CONCLUSIONS: 1. The program was implemented on 1 August 2009. The available evidence shows the applicant was eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to his retirement. 2. His retirement date was 30 September 2009. In view of the fact that the Post-9/11 GI Bill Transferability Program was a new program, it is not unreasonable to presume there were differing interpretations of the implementing instructions by the education counselors at installation level at the onset of implementation. He did not complete the requirements to apply to transfer educational benefits in the TEB online database. Due to his transition from military service in the second month after implementation of the program, it is particularly plausible that he was unaware of the requirement to complete an application to transfer his educational benefits while he was still on active duty. 3. Therefore, in the interest of equity, it would be appropriate to correct his record to reflect he applied to transfer his educational benefits under the Post-9/11 GI Bill Transferability Program prior to 30 September 2009. 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 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 application 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) AR20130002231 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130002231 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1