IN THE CASE OF:	  

		BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120007881 


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 transferred his Montgomery GI Bill (MGIB) educational benefits to his son under the
Post-9/11 GI Bill.

2.  The applicant states he was serving in the U.S. Army Reserve (USAR) and submitted an application to transfer his educational benefits to his son (Marcus A. J____).  He has been told that his request to transfer his educational benefits has been denied because he was discharged from the USAR in 2005 and that he never applied for the benefits.

3.  The applicant provides, in support of his application, copies of:

* two Department of Veterans Affairs (VA) letters
* three VA Forms 22-1990 (Applications for VA Education Benefits)
* two VA Forms 22-1990E (Applications for Family Member To Use Transferred Benefits)
* VA Transfer of Post-9/11 GI Bill Benefits to Dependents (TEB) instructions
* two certificates
* two U.S. Army Human Resources Command (HRC) letters

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 18 October 1983.  He was promoted to master sergeant (MSG)/pay grade E-8 on 1 March 2002 in military occupational specialty (MOS) 79V (Retention and Transition Noncommissioned Officer).
2.  On 18 November 2004, the Director, Personnel Actions and Services, HRC, St. Louis, MO, notified the applicant that his eligibility for retired pay had been established upon attaining age 60.

3.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty on 17 January 2005, honorably released from active duty (REFRAD) on 1 May 2005, and transferred to the 81st Regional Readiness Command (RRC), Birmingham, AL.

4.  A DD Form 214 shows the applicant was ordered to active duty on 1 June 2005, honorably REFRAD on 31 May 2007, and transferred to Detachment 14, 81st RRC, Birmingham, AL.

5.  A review of the applicant's records shows that his son (Marcus A. J____) turned age 23 on 8 September 2009.

6.  Headquarters, 81st Regional Support Command, Fort Jackson, SC, Orders 11-167-00004, dated 16 June 2011, assigned the applicant to the USAR Control Group (Reinforcement), St. Louis, MO, effective 16 June 2011.

7.  In support of his request, the applicant provides the following documents:
   
   a.  Application for VA Education Benefits, dated 30 August 2007, that shows the applicant applied for his Reserve Educational Assistance Program (REAP) educational benefits.

   b.  Transfer of Post-9/11 GI Bill Benefits to Dependents (TEB) instructions, dated 8 August 2009, from the VA website (www.gibill.va.gov).

   c.  Application for VA Education Benefits and Application for Family Member To Use Transferred Benefits, dated 11 August 2010, that shows, in part, that the applicant indicated "son is 23 and a full-time student in college" and his date of birth is 8 September 1986.

   d.  Enrollment Verification Certificate, dated 9 August 2010, that shows the applicant's son was enrolled at the University of Michigan - Ann Arbor and his anticipated graduation date was 20 April 2012.

   e.  VA, Certificate of Eligibility, dated 8 September 2010, that certified the applicant's entitlement to receive benefits under the REAP.


   f.  VA, Atlanta Regional Office, Decatur, GA, letter, dated 14 October 2010, to the applicant's son (Marcus A. J____) that shows his claim for education benefits under the Post-9/11 GI Bill was denied because the U.S. Army did not indicate that his father has been approved for the transferability program.

   g.  VA, Atlanta Regional Office, Decatur, GA, letter, dated 2 November 2010, from an education officer to the Honorable H. Johnson, U.S. House of Representatives, in response to the applicant's inquiry.  It shows that the VA established the applicant's REAP education benefits in September 2007.  The education officer stated, "It appears [the applicant] mistakenly understood this to mean that he could transfer this entitlement to his dependents.  In a recent telephone conversation with [the applicant], it was explained to him that his son is not entitled to education benefits under Chapter 1607.  The criteria for a service member to be eligible for the transfer of entitlement option requires that he or she be on active duty on 1 August 2009; however our records indicate (the applicant) was discharged from the Army Reserve on 12 April 2003; therefore, he is no longer eligible to apply for the TOE [transfer of entitlement] benefit."

   h.  HRC, Fort Knox, KY, memorandum, dated 4 November 2010, from the Chief, Soldier Programs and Services Division, to the Honorable H. Johnson, in response to the applicant's inquiry.  He stated, in part "The Post-9/11 GI Bill Program effective date was 1 August 2009; therefore, it is possible (the applicant) is confusing the program with a different educational program.  He also stated his son was receiving educational benefits from the VA until his 23rd birthday, but the VA has confirmed that no REAP benefits have been used.  (The applicant) signed VA Form 22-1990, Application to Transfer Educational Benefits, on 11 August 2010, after his son's 23rd birthday.  Since his son is now 24 years old, he is not in the Dependent Enrollment Eligibility Reporting System (DEERS) as an eligible dependent; therefore, he is not eligible for the transfer of educational benefits under the Post-9/11 GI Bill."

   i.  VA, Atlanta Regional Office, Decatur, GA, letter, dated 8 February 2011, from the same education officer to the Honorable H Johnson, in response to the applicant's inquiry.  The education officer summarized his/her earlier response, acknowledged the applicant asserted that he has been a member of the USAR since 17 October 1983, and that he still is in the USAR; however, VA records remain unchanged and still show the applicant as being discharged.  The education officer added, "The Department of Defense has the sole authority to determine eligibility for the Transfer of Entitlement Option under the Post-9/11 GI Bill.  If (the applicant) is still an active member of the Army Reserve, he can still apply for the TOE benefit."

   j.  HRC, Fort Knox, KY, memorandum, dated 7 April 2011, from the Chief, Soldier Programs and Services Division to the Honorable H Johnson.  It shows that on 1 April 2011, the applicant submitted additional documentation along with a request for reconsideration.  The congressman was informed that, "After a careful review of the provided documentation and numerous telephonic contacts with your office and with [the applicant], this office determined the provided documentation did not support evidence of an attempt to transfer educational benefits via the Department of Defense Transferability of Education Benefits website, www.dmdc.osd.mil/TEB, otherwise known as TEB, prior to his son's 23rd birthday on 8 September 2009."

   k.  A VA Form 22-1990-E, unsigned and undated, that the applicant submits with this application.

8.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational 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 identified above.

	c.  To satisfy this legally imposed constraint, a child must be an eligible family member at the time of transfer.  To be considered an eligible family member, a child must be enrolled in DEERS and eligible for DEERS benefits.

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

		(2)  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.

		(3)  Family member children can use transferred benefits up to age 26.

	d.  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.

9.  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 applicant contends his MGIB educational benefits should be transferred to his son under the Post-9/11 GI Bill transferability option because he qualified to transfer his educational benefits to his son and he transferred them on time.

2.  Records show the applicant entered the USAR on 18 October 1983.  Records also show that he was serving in the USAR in the rank of MSG (E-8) as a Retention and Transition Noncommissioned Officer, and he was retirement eligible on 1 August 2009.  Thus, he was eligible to transfer his educational benefits to his eligible family members under the Post-9/11 GI Bill.

3.  The evidence of record shows the applicant submitted his application for REAP benefits on 30 August 2007 and the VA established his education benefits in September 2007.
4.  The Post-9/11 MGIB transferability option was implemented on 1 August 2009.

5.  The evidence of record shows the applicant's son (Marcus A. J____) turned age 23 on 8 September 2009.  At the time, he was enrolled in college and scheduled to graduate in April 2012.

6.  The evidence of record shows the applicant submitted an application for his son to use transferred benefits on 11 August 2010, more than 11 months after his son was no longer in an eligible dependent status.

7.  There is no evidence of record, and the applicant provides insufficient evidence, to show that he submitted an application to transfer his educational benefits to his son prior 8 September 2009, the date that his son turned age 23 and was no longer enrolled in DEERS as an eligible family member of the sponsor.

8.  The Department of Defense, Department of Veterans Affairs, and the Army conducted a massive public campaign plan that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  While there may have been some confusion during the early stages after the implementation, the applicant did not take any action to transfer his benefits for more than one year after the program was implemented.  Thus, there is no evidence he exercised due diligence.

9.  Therefore, considering all the evidence and information presented by the applicant, together with the evidence of record, there is no basis for granting the applicant's 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)                                         AR20120007881



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ABCMR Record of Proceedings (cont)                                         AR20120007881



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