BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160002613 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: 14 September 2017 DOCKET NUMBER: AR20160002613 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 education benefits to his eligible family member(s) prior 31 August 2009, 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: 14 September 2017 DOCKET NUMBER: AR20160002613 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 member under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. He states, in effect, he was transitioning from the Army during the period the Post-9/11 GI Bill transfer policy was being implemented; therefore, he was not aware that the transfer of education benefits had to occur prior to his retirement. He further states education benefits under the TEB were not discussed during his Transition Assistance Program session before he retired in August 2009. 3. He provides a self-authored letter and his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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. On 31 August 2009, the applicant retired from the Regular Army by reason of sufficient service for retirement after completing 21 years, and 27 days of creditable active service. 3. During the processing of this case an advisory opinion was obtained from Office of the Chief of the Army Incentives Branch, U.S. Army Human Resources Command, which states: a. The applicant had at least 6 years of active duty, did not have a negative action flag 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. b. 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. As the applicant's last day of service was 31 August 2009, he retired during the 90-day implementation phase 4. The applicant was provided a copy of this advisory opinion for comment. He did not respond. REFERENCES: 1. Public Law 110-252 limits the eligibility to transfer unused educational benefits to those members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 2. 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 any member of the Armed Forces on or after 1 August 2009 may transfer benefits if, at the time of the approval of the request to transfer entitlement to educational assistance under this section, the member 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 for 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 service or 20 qualifying years of Reserve service.) d. A Soldier may only transfer to eligible family members. To be considered an eligible family member, the spouse or child must be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and be eligible for DEERS benefits. Children lose eligible family member status upon turning age 21 or at marriage. Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS). 3. The Army, DOD, and the veteran's administration initiated a public campaign through military, public, and social media venues on the Post-9/11 GI Bill and TEB. However, during the first 90 days of the program, many Soldiers did not receive information on the requirements of the program. DISCUSSION: The evidence of record shows the applicant retired on 31 August 2009 after completing over 20 years of active duty service. His retirement date was within 90 days of implementation of the law authorizing the transfer of Post-9/11 GI Bill benefits to eligible family members who were/are enrolled in DEERS. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002613 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002613 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2