IN THE CASE OF:	  

		BOARD DATE:	 15 September 2011 

		DOCKET NUMBER:  AR20110004420 


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 his eligible family members were listed in the official Transfer of Education Benefits (TEB) online database and to transfer his GI Bill educational benefits to his eligible family members under the Post 9/11 GI Bill transferability option.

2.  The applicant states he was on active duty in the U.S. Army on or after
1 August 2009 and he met the criteria for the Post 9/11 GI Bill transferability option.  His family members were enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and eligible for the TEB.

3.  The applicant provides:

* two DD Forms 214 (Certificates of Release or Discharge from Active Duty) for the period ending 31 July 2002 and 2 August 2009
* a Department of Veterans Affairs (VA) Certificate of Eligibility, dated
23 December 2009

CONSIDERATION OF EVIDENCE:

1.  A DD Form 214 shows the applicant entered active duty as a member of the Georgia Army National Guard (GAARNG) on 17 September 1990, retired from active duty on 31 July 2002 by reason of sufficient service for retirement, transferred to the U.S. Army Reserve (USAR) Control Group (Retired) in the 


rank/grade of lieutenant colonel (LTC)/O-5, and he was placed on the Retired List on 1 August 2002.  He completed 11 years, 10 months, and 14 days of net active service this period; 8 years, 2 months, and 28 days of total prior active service; and 8 years, 10 months, and 28 days of total prior inactive service.

2.  A DD Form 214 shows the applicant was ordered to active duty in support of Operation Iraqi Freedom (OIF) on 4 May 2008, honorably released from active duty (REFRAD) by reason of completion of required service on 2 August 2009, transferred to the U.S. Army Reserve (USAR) Control Group (Retired), and placed back on the Retired List.  He completed 1 year, 2 months, and 29 days of net active service this period and 20 years, 1 month, and 13 days of total prior active service.

3.  In support of his application he provides his VA Certificate of Eligibility, dated 23 December 2009, that shows he is entitled to benefits for an approved program of education or training under the Post 9/11 GI Bill and that he has 36 months of full-time benefits.

4.  There is no evidence the applicant submitted a VA Form 22-1990 (Application for VA Education Benefits) prior to his separation from active duty.

5.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Enlisted Professional Development Branch, Washington, DC.

	a.  The advisory official recommends administrative relief for the applicant.

	b.  Public Law 110-252 limits eligibility to transfer unused benefits to those members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.  It also specifies the eligible family members who may receive transferred benefits, which includes a spouse and family member child(ren).

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

		(2)  To be considered an eligible family member, a child must be enrolled in DEERS and eligible for DEERS benefits.

		(3)  Children lose eligible family member status upon turning age 21, or at marriage.


		(4)  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.

		(5)  Family member children can use transferred benefits up to the age
of 26.

		(6)  Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.

   c.  The advisory official notes the applicant was eligible to transfer benefits under the Post 9/11 GI Bill transferability program.  He adds that, although significant measures were taken to disseminate information, many Soldiers who left service during the first 90 days of the program were not aware of the requirement to transfer their benefits prior to leaving military service.

   d.  The applicant was REFRAD on 2 August 2009 and, at the time, he had eligible family members enrolled in DEERS.

   	(1)  He had at least 6 years of eligible service in order to transfer education benefits to his spouse and at least 10 years of eligible service to transfer education benefits to eligible children.

   	(2)  He was eligible to transfer his educational benefits to the following family members:  Holly J. M------ (spouse), Marlee J. M------ (child), and
Tessa M------ (child).  However, Alexander J. M------ (child) would not have been eligible for the transfer of educational benefits because he was 21 years of age (unless he had received an extension for being a full-time student).

6.  On 8 July 2011, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments or a rebuttal.  On 26 July 2011, he concurred with the advisory opinion and requested the Board adopt the recommendation of the advisory official in whole as soon as possible.

7.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority to transfer unused education benefits to eligible family members.  The Public Law amended Title 10 (Armed Forces), U.S. 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 entitlement to unused educational benefits to one or more of the specified family members.

	a.  An eligible individual is any member of the Armed Forces who, at the time 
of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least:

		(1)  6 years of service in the armed forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; or

		(2)  the years of service as determined in Army regulations and established by the Secretary of the Army.

   b.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement as follows:

		(1)  to the individual's spouse;

		(2)  to one or more of the individual's children; or

		(3)  to a combination of the individuals (i.e., in paragraphs (1) and (2)).

8.  Army Regulation 600-8-14 (Identification [ID] Cards for Members of the Uniformed Service, Their Eligible Family Members, and Other Eligible Personnel) provides instruction to prepare, issue, use, account for, and dispose of ID cards the Uniformed Services issue.  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 family member of the sponsor until age 23 or graduation, whichever occurs first.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows:

	a.  the applicant was a member of the Armed Forces serving on active duty on or after 1 August 2009;

	b.  he had at least 6 years of eligible service in order to transfer education benefits to his spouse and at least 10 years of eligible service to transfer education benefits to his eligible children; and


	c.  he was eligible to transfer his educational benefits under the Post 9/11
GI Bill transferability program to his eligible family members; specifically to
Holly J. M------ (spouse), Marlee J. M------ (child), and Tessa M------ (child).

2.  The evidence of record also shows that, based on the applicant's separation date, he may not have been aware of the requirement to transfer his benefits prior to leaving military service.  Therefore, as a matter of justice, it would be appropriate to correct the applicant's record and the TEB online database to show the applicant transferred at least 1 month of his educational benefits to his eligible family members under the Post 9/11 GI Bill transferability program prior to his separation from active duty on 2 August 2009.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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:

	a.  showing he timely submitted a VA Form 22-1990 to the appropriate office;

	b.  showing the VA timely received and processed his application for education benefits;

	c.  showing the Army approved his request to transfer Post 9/11 GI Bill benefits to his eligible family members prior to his retirement; and

	d.  updating the TEB online database to show he transferred at least 1 month of his educational benefits to each of his three eligible family members:  Holly J. M------ (spouse), Marlee J. M------ (child), and Tessa M------ (child)) under the Post 9/11 GI Bill transferability program prior to his separation from active duty on 2 August 2009, provided all other program eligibility criteria are met.


2.  As a result of the above correction, the applicant may then access the TEB online database and adjust the actual number of months of education benefits he desires to transfer to his three eligible family members.



      ___________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)                                         AR20110004420



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ABCMR Record of Proceedings (cont)                                         AR20110004420



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