BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150013649 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: 22 September 2016 DOCKET NUMBER: AR20150013649 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 he timely filed his application and the Army approved his request to transfer Post-9/11 GI Bill benefits to his family members, 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: 22 September 2016 DOCKET NUMBER: AR20150013649 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 education benefits to his family members under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states, in effect he needs to transfer his Post-9/11 GI Bill education benefits to his dependents. He states during his transition from service during the period 31 May through 31 August 2009, he was misinformed about the process for applying to transfer education benefits. After numerous queries to Army Education Centers, Veterans Administration, and Retirement Service Officers, the U.S. Army Human Resources Command (HRC) advised him to request a remedy through the Army Board for Correction of Military Records. 3. The applicant provides: * DD FORM 214 (Certificate of Release or Discharge from Active Duty) * Email * Retirement Orders 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 enlisted in the Regular Army on 28 August 1985, and held military occupational specialty 42A (Human Resources Specialist) and 62B (Construction Equipment Repair). 3. The Defense Finance and Accounting Service confirms he was on approved permissive temporary duty from 1 through 26 June 2009 and on transition leave from 28 June 2009 through 31 August 2009. 4. He retired on 31 August 2009 in the rank/grade of MSG/E-8. He was credited with completing over 20 years of net active service. 5. An advisory opinion was received from the Human Resources Command, Army Education Incentives Branch on 8 July 2016, in the processing of this case. An advisory official recommended approval and stated: a. The applicant was on terminal leave and within 90 days of program Implementation. b. The applicant had at least 6 years of active duty, had no negative flagging action at the time of his retirement, and 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. 6. On 12 August 2016, the applicant concurred with the advisory opinion. REFERENCES 1. 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: 1. The applicant's last day in an active status was 31 August 2009, which was within 90 days of implementation of the program. He, in effect, contends he was misinformed about the process to apply for the transfer of his educational benefits prior to retirement; therefore, none of the required steps to transfer his benefits were taken. 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. 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. An advisory official has confirmed that he met the criteria to be approved for the benefit and recommends granting relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013649 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013649 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2