AR20150009488

IN THE CASE OF:

BOARD DATE: 29 March 2016

DOCKET NUMBER: AR20150009488

BOARD VOTE:

____X_____ ___X____ ____X____ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 29 March 2016

DOCKET NUMBER: AR20150009488

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 and the Army approved, in a timely manner, his application to transfer his unused education benefits to his eligible dependent, in accordance with the TEB provisions of the Post-9/11 GI Bill, prior to his effective date of 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.

IN THE CASE OF:

BOARD DATE: 29 March 2016

DOCKET NUMBER: AR20150009488

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 correction of his records to show he made a timely application, prior to his effective date of retirement, to transfer his unused education benefits to his eligible dependent(s), in accordance with the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2. The applicant states, in effect, on or about December 2008, he was assigned to the Wounded Warrior Transition Battalion and was eventually placed on the temporary disability retired list (TDRL). He went on transition leave on
22 October 2009 with a temporary retirement date of 1 February 2010. He states he never received any information on the correct process of transferring his benefits; if he had known, he would have taken advantage of the program. He tried to transfer his benefits to his son in December 2009 by completing the Department of Veterans Affairs (VA) Application for VA Education Benefits (VA Form 22-1990 (VONAPP)) but he did not know the proper paperwork or process.

3. The applicant provides:

* VA Form 22-1990, dated 28 December 2009
* Orders 275-0251, issued by Headquarters, U.S. Army Garrison, Fort Bragg, North Carolina, on 2 October 2009
* Order D163-14, issued by U.S. Army Physical Disability Agency,
Arlington, Virginia, on 12 June 2014
* VA Form 22-1990E (Application for Family Member to Use Transferred Benefits), dated 7 May 2015
CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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 record contains amended orders ordering his retirement from the Regular Army effective 31January 2010, with placement on the TDRL the following day. These orders show his final transition processing was to occur on 22 October 2009.

3. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was retired on 31 January 2010 by reason of temporary disability in the rank of command sergeant major/E-9 after completing 26 years, 5months, and 22 days of active service.

4. In the processing of this case, an advisory opinion was obtained from the Section Chief, Finance and Incentives Branch, U.S. Army Human Resources Command (HRC), Fort Knox, Kentucky on 27 October 2015. This official recommended administrative relief for the applicant, because he meets all qualifying requirements and was on terminal leave during the first 90days of the program’s implementation phase. The advisory official noted:

a. Public Law110-252 establishes the legal limitations on the transferability of unused Post-9/11 GIBill education benefits. Section 3020 of this law limits the eligibility to transfer unused education benefits to those members of the Armed Forces serving on active duty or as members of the Selected Reserve on or after 1 August 2009. Although significant measures were taken to disseminate program information to all Soldiers within all Army components during the initial phase of the program, many Soldiers who left the service during the first 90days of the program were not fully aware of the requirement to transfer benefits prior to leaving military service.

b. The TEB online database shows the applicant had two eligible dependents as of 31 January 2010, his last day of service. He was eligible to transfer his unused education benefits to his spouse and his child.

5. The applicant was provided a copy of the HRC advisory opinion on 9November 2015 for information and to allow him the opportunity to submit comments or a rebuttal. The applicant responded on 19 November 2015, stating he concurred with the HRC opinion.

6. The applicant provides a copy of VA Form 22-1990, dated 28 December 2009, which shows he attempted to apply for VA educational benefits.

REFERENCES:

1. On 22June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states eligible individuals include any member of the Armed Forces on or after 1August 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 GIBill, and:

a. has at least 6years of service in the Armed Forces on the date of election and agrees to serve 4additionalyears in the Armed Forces from the date of election; or

b. has at least 10years 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 4additional 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 1August 2009 through 1August 2013.

2. The policy further states the Secretaries of the Military Departments will provide counseling on the benefits under the Post-9/11 GIBill to active duty participants and members of the Reserve Components with qualifying active duty service prior to separation or release from active duty, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law110-252, section3316.

3. Public Law110-252 limits the 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.

4. The Education and Incentives Branch at HRC has previously advised the Board that although significant measures were taken to disseminate the information to all Soldiers within Army components during the initial phase of the program, many Soldiers who left service or started transition leave during the first 90 days of the program’s implementation were not fully aware of all the requirements to transfer benefits to all eligible family members.

DISCUSSION:

1. The applicant contends his records should be corrected to show he made a timely application to transfer his unused education benefits to his dependent child under the TEB provisions of the Post-9/11GIBill.

2. The program was implemented on 1August 2009. The Army, DOD, and VA conducted a public information campaign that generated communications through military, public, and social media venues. However, during the initial implementation phase of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the necessary procedures one must follow when applying to transfer their unused education benefits. Soldiers who retired or were on transition leave during the implementation phase may not have had the necessary information to properly transfer their unused education benefits.

3. The applicant was fully eligible to transfer his unused education benefits under the TEB provision of the Post-9/11GIBill prior to his final transition processing date of 22 October 2009, which was within the first 90 days of the program implementation. Given the initial uncertainty regarding the program during its infancy, it is probable that he lacked the information necessary to make a proper election with respect to transferring his unused education benefits.

4. In this case, it is reasonable to conclude that, had the applicant known of the proper procedures to follow to successfully transfer his unused education benefits, he would have complied with them prior to his retirement on 31 January 2010.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009488

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009488

4

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2