BOARD DATE: 5 January 2016 DOCKET NUMBER: AR20150005959 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 he be allowed to transfer his Post-9/11 GI Bill educational benefits to his dependents under the Transfer of Education Benefits (TEB) program. 2. The applicant states he was never told there was a time limit to transfer his educational benefits or he would have done so while still on active duty. He was told many times that his educational benefits could be used or transferred at any time. Had he known the rule he would have transferred them while still in the service. 3. The applicant provides no additional supporting documentation. 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 transferred to the Retired Reserve effective 1 June 2010 with 22 years of creditable service with the Army National Guard. His last period on active duty service was from 30 August 2008 through 3 September 2009. 3. The available records do not contain a separation counseling form or an application for TEB. 4. From the applicant's statements, it appears that he did not request transfer of his educational benefits until some point in late 2013 or early 2014. 5. In similar cases the Education Incentives Branch, U.S. Army Human Resources Command, Fort Knox, KY, has recommended approval of an applicant's request when an applicant left the military within 90 days of implementation of the program. They also provided the following regulatory citations and eligibility information: a. Public Law 110-252 established the legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Section 3020 limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve. b. DOD established its criteria for eligibility and transfer of unused educational benefits to eligible family members on/or about 22 June 2009. c. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependents on or after 1 August 2009. d. Must be on active duty or in the Selected Reserve and not barred or flagged due to an adverse personnel action. e. Completed a minimum of 6 years in the Armed Services, and agree to incur an active duty service obligation (ADSO) of an additional 4 years from the date of the request (or) f. Have at least 10 years of service on the date of election and cannot commit to 4 additional years due to a Retention Control Point (RCP) or Mandatory Retirement Date (MRD) and must commit to serve for the maximum amount of time allowed by either RCP or MRD (includes Sanctuary 20-year retirement, Title 10 USC 12686a) as of the date of request. g. Soldiers with an approved retirement date between 1 August 2009 and 31 July 2010 could apply for TEB without incurring a service obligation. h. Any TEB request submitted on or after 1 August 2013 incurs a 4-year ADSO from the TEB request date. Soldiers who request to transfer their education benefits on or after 1 August 2013 incur a 4-year ADSO (regardless of their total service on 1 Aug 2009 or if they are eligible for retirement). DISCUSSION AND CONCLUSIONS: 1. It appears that the applicant had over 22 years of qualifying service and had been retired for around 3 years when he applied to participate in the TEB. 2. What, if any, preretirement counseling the applicant received is not able to be determined from the available records. 3. It is noted that the applicant was on active duty at the time the TEB was implemented and remained in an active ARNG status for an additional 10 months after the implementation of the program. 4. As of 1 August 2013, all personnel wishing to utilize the TEB are required to obligate to a 4-year ADSO. Because the applicant was already retired when he applied, he could not obligate to the ADSO and is precluded from participating in the TEB. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _x______ ___x_____ ___x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined that the evidence presented was sufficient to support a recommendation for relief. It is noted that his transition from active duty back to the ARNG and his transfer to the Retired Reserve occurred within a relatively short window. It is possible that he was not in a position to access information on TEB during this time. While he bears the primary responsibility for not having applied for this benefit, he was fully eligible for TEB without incurring any additional service obligation. There is no harm to the Army if he is now allowed to use this benefit. 2. As a result, the Board recommends correction of the applicant's record to show he applied for TEB in a timely manner and that his application was approved, provided his service met all other applicable program criteria. _______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) AR20150005959 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005959 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1