BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150017073 BOARD VOTE: _____x____ ___x____ ___x_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150017073 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 records of the individual concerned be corrected to show he filed his application and the Army approved his request to transfer his Post-9/11 GI Bill benefits to his family member(s) prior to retirement. _____________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. BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150017073 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 an exception to policy to transfer his educational benefits to his family member(s) under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states at the time of retirement, the new GI Bill had been passed by Congress, but the Services had not determined how they were going to implement the transfer of benefits. While he was out-processing for retirement, the counselor told him not to transfer his benefits at that time, he would be afforded the opportunity to do so after the implementation decisions had been made by the Services. 3. The applicant provides copies of: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Request for status update letter, dated 24 January 2017 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 is a lieutenant colonel (LTC)/O-5 who retired from the Regular Army (RA) on 30 September 2009. 3. A DD Form 214 shows the applicant entered active duty this period on 31 October 1989, he retired with sufficient service for retirement on 30 September 2009. He had competed 19 years and 11 months of net active service this period. He also had 2 months and 20 days of prior active service. 4. There is no evidence that the applicant completed a request to transfer educational benefits to his family member(s) before leaving the military. 5. There is no evidence that the applicant's family member(s) made a previous claim to the Department of Veterans Affairs (VA) for educational benefits. 6. In connection with the processing of this case, the applicant's request was referred to the Chief, Army Education Incentives, United States Army Human Resources Command (USAHRC), Fort Knox, KY, for review and administrative action, if appropriate. a. The USAHRC official advised that based on the details below, we recommend administrative relief for the applicant as he was on terminal leave and retired within 90 days of program implementation, and he met other TEB requirements. Although significant measures were taken to disseminate the information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left service during the 90-day implementation phase were not fully aware of the requirement to transfer educational benefits prior to leaving the military. b. The applicant had at least six years of active service, did not have a negative action flag at the time of retirement, and he would not have incurred a TEB service obligation; therefore, had he requested TEB during the implementation phase and prior to retirement, his TEB request would have been approved. c. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the 90-day implementation phase. The applicant’s last day in the service was 30 September 2009 which was within the 90-day implementation phase. In previous cases, the ABCMR granted relief based upon the terminal leave or retirement date within the 90-day implementation phase. 7. On 27 September 2016, the applicant was provided a copy of the USAHRC advisory opinion for information and to allow him the opportunity to submit comments. The applicant did not respond. REFERENCES: 1. 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 of 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. 2. 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. 3. The VA is restricted to paying for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA. DISCUSSION: The evidence of record shows the applicant was fully eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to retiring with sufficient service for retirement from the RA. a. He had at least six years of active service, did not have a negative action flag at the time of retirement, and he would not have incurred a TEB service obligation. The applicant had more than 20 years of service upon retirement. b. He was serving as a member of the RA on 1 August 2009 and his last day of active service was 30 September 2009, which was within 90 days of implementation of the program. c. He was eligible to transfer his educational benefits to his authorized family member(s) enrolled in the Defense Eligibility Enrollment Reporting System. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017073 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017073 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2