BOARD DATE: 24 March 2015 DOCKET NUMBER: AR20140013193 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 approval of Transfer of Education Benefits (TEB) under provisions of the Post-9/11 GI Bill to his wife. 2. The applicant states, in effect, that prior to separating from the Army he was never provided complete information with respect to the eligibility requirements for TEB with respect to the Post-9/11 GI Bill. He attests that in conjunction with his retirement on 1 January 2010, he began his transition prior to the program being enacted. Therefore, the topic was not discussed completely during his transition counseling and it was not explained to him that he must transfer his benefits to his eligible family members before he retired from the Army. Due to health and other personal reasons, he cannot use the benefits himself and it would not be fair to let them go to waste rather than allowing him an opportunity to transfer the eligibility to his wife. 3. The applicant provides a self-authored statement. 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 retirement orders were issued on 16 April 2009 and he completed his DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members) on 27 April 2009. 3. He retired from the Regular Army on 31 December 2009 by reason of sufficient service for retirement. He completed 20 years and 1 month of creditable active service. 4. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant was fully eligible to transfer his education benefits prior to retirement, but he did not do so. He began his retirement transition in April 2009, the program was implemented in August 2009, and he retired on 31 December 2009. Prior to retirement, it does not appear he applied for TEB while on active duty. 2. 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 benefit. This confusion was exacerbated by 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's implementation. Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling. 3. The applicant's retirement date was 31 December 2009. It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while on active duty he would have done so. Therefore, as a matter of equity, his records should be corrected to show he did so 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 that 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 Post 9/11 GI Bill benefits to his family member prior to his 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) AR20140013193 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140013193 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1