IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100016282 


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 transfer of his GI Bill educational benefits to his daughter under the Post 9-11 GI Bill transferability option.

2.  The applicant states that his daughter graduated from Southeastern Louisiana University in May 2009.  After the GI Bill transferability option became available online via the Internet, he transferred a portion of his GI Bill benefits to her so that she could begin graduate studies in August 2010 and prepare for a career in the Department of State.

   a.  He was advised to check the website in a few months, which he did after he returned from his overseas tour in support of Operation Iraqi Freedom.  At that time, he learned that his daughter had dropped out of the system because she was over 23 years or age and there was no record of the requested transfer.

   b.  He cannot "re-transfer" the benefits to her because the system pulls in the eligibility information from the Defense Enrollment Eligibility Reporting System (DEERS), she is over 23 years of age, and she is no longer in the DEERS data base.

   c.  He states his daughter is eligible to use his benefits for three more years, which is long enough to complete her graduate studies.  However, due to the initial computer glitch, and now a restrictive regulation, he cannot transfer the benefits to her.

   d.  He states the Department of Veterans Affairs (VA) has informed him that this is a Service problem, while the U.S. Army has informed him that it cannot help him because it is a VA benefit and their problem.

   e.  He adds he was very happy to know that he could help his daughter pay for her graduate program and he is simply trying to take advantage of a benefit that has been promised to Soldiers and publicized in the media by our leaders.

3.  The applicant provides no additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a commissioned officer in the U.S. Army Reserve on 24 September 1984.  He entered active duty on 2 August 1985.
He was promoted to lieutenant colonel/pay grade O-5 on 1 October 2010.

2.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Military Personnel Management, Washington, DC.

   a.  The advisory official does not recommend administrative relief.

   b.  The advisory official notes the applicant is not eligible to transfer benefits under the Post 9-11 GI Bill transferability program to his daughter.

       (1)  Public Law 110-252 specifies dependent children can use transferred benefits up to the age of 26.  Public Law 110-252, section 161632a(c), establishes eligible dependents who may receive transferred benefits.

       (a)  To satisfy this legally imposed constraint, a child must be an eligible dependent at the time of transfer.

       (b)  To be considered an eligible dependent, a child must be enrolled in DEERS and eligible for DEERS benefits.

       (2)  Children lose eligible dependent status upon turning age 21, or at marriage.

       (3)  Eligible dependent status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried, as verified by DEERS.

   c.  The advisory official notes the Department of the Army, Department of Defense, and Department of VA initiated a massive public campaign plan that generated major communications through military, public, and social media venues.  Information on the Post 9-11 GI Bill and subsequent transfer of entitlements was published well in advance of the implementation date of
1 August 2009.

   d.  The advisory official notes that, at the time of the requested transfer, the applicant's daughter was over 23 years of age.  She also notes that the applicant transferred his benefits to his spouse on 9 March 2010.

   e.  The advisory official states that specific Congressional action would be required to amend the current legislation in order to change the dependent eligibility status of the applicant's daughter.

3.  On 4 January 2011, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.  To date, a response has not been received from the applicant.

4.  Public Law 110-252 (Supplemental Appropriations Act, 2008), in pertinent part, provides authority to transfer unused education benefits to family members.
This Public Law amended Title 10 (Armed Forces), United States Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer to one or more of the specified dependents.

   a.  It shows a child to whom entitlement is transferred under this section may not use any entitlement so transferred after attaining the age of 26 years.

   b.  The administrative provisions apply to the use of an entitlement transferred under this section.  The eligible dependent to whom the entitlement is transferred shall be treated as the eligible member for purposes of such provisions.

5.  Air Force Instruction 36-3026_IP, dated 17 June 2009, superseded Army Regulation 600-8-14 (Identification [ID] Cards for Members of the Uniformed Service, Their Eligible Family Members, and Other Eligible Personnel).  Chapter 4 (ID Cards for Children), Table 4-4 (Eligibility Criteria and Documentation Requirements for Students Age 21 to 23), shows an eligible child enrolled full time in an accredited institution of higher learning, and who is dependent on the sponsor for over 50 percent of their support, remains eligible as a dependent of the sponsor until age 23 or graduation, whichever occurs first.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his GI Bill educational benefits should be transferred to his daughter under the Post 9-11 GI Bill transferability option because he requested the transfer of a portion of his GI Bill benefits to her to begin graduate studies in August 2010; however, his daughter was dropped out of DEERS because she was over 23 years or age and his requests have been denied.

2.  Under the Post 9-11 GI Bill transferability option, a dependent child can use transferred benefits up to age 26 provided the child is an eligible dependent at the time of transfer, as verified by DEERS.

3.  The evidence shows that children lose eligible dependent status upon turning age 21.  However, eligible dependent status may be extended to age 23, if the child is enrolled as a full-time student and unmarried, as verified by DEERS.

4.  The applicant's daughter graduated from college [emphasis added] in May 2009 and she was planning [emphasis added] to begin graduate studies in August 2010.  The evidence shows the applicant's daughter was over 23 years of age at the time the applicant requested transfer of benefits and she was not an eligible dependent in DEERS.  Thus, the applicant's daughter was not entitled to receive the applicant's educational benefits under the Post 9-11 GI Bill transferability option.

5.  Therefore, considering all the evidence and information presented by the applicant, together with the evidence of record, there is no basis for granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _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)                                         AR20100016282



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ABCMR Record of Proceedings (cont)                                         AR20100016282



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