BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150012127 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: 30 August 2016 DOCKET NUMBER: AR20150012127 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 by showing the applicant filed his application and the Army approved his request to transfer his 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. BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150012127 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 under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states due to being on transition leave before the implementation of the Post 9/11 GI Bill he did not receive the information about transferring this benefit to his family member. His last day of active duty was on 31 October 2009. 3. The applicant provides: * DA Form 31 (Request and Authority for Leave) * Letter from the U.S. Army Human Resources Command to his Member of Congress * DA Form 137-2 (Installation Clearance Record) * Department of Veterans Affairs Federal Benefits for Veterans booklet 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. Having had prior service, the applicant enlisted in the Regular Army on 7 November 1997 and he held military occupational specialty 52D (Power Generation Equipment Repairer). 3. He served through multiple reenlistments in a variety of stateside and overseas assignments and he attained the rank/grade of staff sergeant (SSG)/E-6. 4. His DD Form 2648 (Preseparation Counseling Checklist) shows he underwent a pre-separation briefing at Fort Richardson, AK, on 17 June 2009. He checked the "Yes" in item 13a (Education/Training) in anticipation of his upcoming retirement. Items checked "Yes" are mandatory for service members to receive further information or counseling or attend additional workshops, briefings, classes, etc. 5. In connection with his retirement, he took transition leave and permissive temporary duty from 8 July 2009 to 31 October 2009. 6. On 31 October 2009, he was honorably retired and he was placed on the Retired List in the rank/grade of SSG/E-6 on 1 November 2009. He was credited with completing more than 20 years of active service. REFERENCES: 1. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, Public Law 110-252, 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. 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 the service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service. A Soldier must currently be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009. 2. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active service, individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 3. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. DISCUSSION: 1. The applicant was fully eligible to transfer his educational benefits under the TEB provision prior to retirement, but he did not do so. The program was implemented in July 2009 and he retired on 31 October 2009. Prior to retirement, he did not apply for the transfer of benefits while serving on active duty. 2. The Department of Defense (DOD), Department of Veterans Affairs, and Department of the Army DOD, conducted public campaigns that generated communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. A Soldier must meet several criteria to qualify to transfer benefits to an eligible family member. 3. Nevertheless, during the initial implementation of this new program, many Soldiers in all grades were confused regarding their eligibility and/or the procedure to apply for such benefits. 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 also have been confused regarding the implementation instructions and may not have conducted proper counseling. 4. The applicant's retirement date was 31 October 2009. It is reasonable to presume that had the applicant been aware of the procedure to transfer his benefits while in an active duty status he would have done so. From an equity standpoint, his records may be corrected to show he did so in a timely manner prior to his effective date of retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012127 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012127 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2