IN THE CASE OF:  

		BOARD DATE:  23 August 2012

		DOCKET NUMBER:  AR20120008021


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, in effect, an exception to policy to transfer his education benefits to his daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill.

2.  The applicant states:

* he was uninformed that education benefits must be transferred to dependents before they reached 23 years of age
* his oldest child, his daughter Natasha, reached 23 years of age on          13 January 2012
* he attempted to transfer his benefits to her on 12 April 2012
* Natasha was displayed on the Post-9/11 GI Bill website, yet labeled ineligible
* information on the Post-9/11 GI Bill website states dependents can use transferred benefits between 18 and 26 years of age
* he spoke with an education counselor at Fort Bragg, NC, who could not explain nor understand why Natasha was visible yet ineligible
* he contacted representatives with the Defense Enrollment Eligibility Reporting System (DEERS); they had no knowledge of how to assist him and directed him to the Department of Veterans Affairs (VA)
* he spoke to the VA; they were unable to assist him
* finally, his spouse called a toll-free information number, where she was informed Natasha was ineligible to receive her father's transferred Post-9/11 GI Bill education benefits because she was 23 years of age  
* it was never made clear to him that the transfer of benefits must occur prior to his daughter reaching 23 years of age

3.  The applicant provides: 

* a 2-page, typed statement
* a memorandum from the Office of the Under Secretary of Defense, dated 22 June 2009, subject: Directive-Type Memorandum 09-003 (Post-9/11  GI Bill)
* a letter from the Defense Manpower Data Center (DMDC), dated 28 July 2012
* a manual from the DMDC, dated 11 December 2009, titled TEB Web Application for Service Members v2.00 User Manual

CONSIDERATION OF EVIDENCE:

1.  The applicant currently serves in the Regular Army, in the rank/grade of master sergeant (MSG)/E-8.

2.  On 25 February 1987, he enlisted in the Regular Army.

3.  On 13 January 1989, Natasha was born.  On 13 January 2012, she reached 23 years of age.

4.  His deployment history is unknown.  Neither his available record, nor documents provided by the applicant, establish his periods of deployment following the signing into law of the Post-9/11 GI Bill.

5.  In the processing of this case, on 2 July 2012, an advisory opinion was obtained from the Chief, Enlisted Career Systems Division, Office of the Deputy Chief of Staff, G-1, Department of the Army, Washington, DC.  The advisory official did not recommend administrative relief because the applicant's daughter had lost DEERS eligibility, unless the applicant could provide evidence showing he attempted to transfer his benefits, using the TEB webpage, to his daughter on or before she lost DEERS eligibility at 23 years of age.  The advisory official further noted:

* to be considered an eligible dependent, the spouse or child must be enrolled in DEERS and be eligible for DEERS benefits
* children lose eligible dependent status upon reaching 21 years of age, or at marriage
* eligible dependent status can be extended from 21 years of age to 23 years of age, only if the child is enrolled as a full-time student and is unmarried (verified by DEERS)
* wards of the state are not eligible for the benefit
* once benefits are transferred, they may be used by the dependent child until he/she reaches 26 years of age
* his child, Natasha, is not eligible due to her DEERS status

The advisory official noted the applicant retained eligibility to transfer his educational benefits to his spouse.

6.  On 9 July 2012, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  
7.  On 5 August 2012, he responded, wherein he requested the Army Board for Correction of Military Records (ABCMR) reject the Office of the Deputy Chief of Staff, G-1 advisory opinion in whole and permit the transfer of his educational benefits to his daughter Natasha.  In his rebuttal, he contends:

   a. Directive Type Memorandum 09-003 (Post-9/11 GI Bill) is the regulation and guidelines for service members.  Attachment 2 of this memorandum states, "a family member must be enrolled in DEERS and eligible for benefits at the time of transfer to receive transferred educational benefits."  There is no reference to an age of 23 years being the requirement or cut-off for the TEB to take place.  

   b. As proof of Natasha's enrollment in DEERS, he submitted a letter from the DMDC, dated 28 July 2012.

   c. For reference, he attached the TEB Web Application for Service Members v2.00 User Manual.  This manual failed to reference any requirement other than DEERS enrollment.  There is no mention of the requirement for a Soldier to complete the TEB to a dependent child prior to the child reaching 23 years of age.

   d. There is no reference in various program documents pertaining to TEB of the requirement to transfer educational benefits to a child prior to their reaching 23 years of age.  The consistently stated requirement is that the child be enrolled in DEERS, which Natasha is and has been since birth.

   e. He was serving in a combat zone and isolated from all news topics when the TEB provisions of the Post-9/11 GI Bill went into effect; therefore, he never received the in-depth information other Soldiers received regarding the TEB.  Every piece of information he received stated the TEB could be made to a child listed in DEERS, the child must use the benefits prior to reaching 26 years of age, and the TEB must occur before the Soldier left active duty.

   f. He is asking for this appeal because he was misled, not only by official information published on numerous websites, but by the Department of Defense (DOD), the education officers at Fort Bragg, NC, and the GI Bill call center representatives, as the information regarding the eligibility age cut-off is not public knowledge.  Readily available was the age requirement for use by the child receiving the TEB between the ages of 18 and 26 years of age, but the cut-off age of 23 years of age is not publicized nor presented.  

   g. He understands he is personally responsible for securing the TEB in a timely manner; however, at the time he submitted the documents he could only adhere to the guidelines that were available and presented both verbally and in writing.  Had the cut-off age restrictions been known, he would have transferred the benefits prior to Natasha reaching the cut-off age.
 
8.  Title 38, U.S. Code (USC), section 3319 (Authority to Transfer Unused Education Benefits to Family Members) permits an eligible service member to transfer unused Post-9/11 GI Bill educational benefits to eligible dependents. This section defines eligible dependents as the member's spouse, one or more of the member's children, or a combination of spouse and child(ren).     

9.  Title 38, USC, section 101 (Definitions), paragraph (4)(A)(iii) defines the term "child" as a legitimate child who is unmarried and who, after attaining the age of eighteen years, and until completion of education or training (but not after attaining the age of twenty-three years) (emphasis added), is pursuing a course of instruction at an approved educational institution. 

10.  On 22 June 2009, DOD established the criteria for the eligibility and transfer of unused educational benefits to eligible family members.  The policy states an eligible family member is the member's spouse, one or more of the member's children, or a combination of spouse and child(ren). A family member must be enrolled in DEERS and be eligible for benefits (emphasis added), at the time of transfer to receive transferred educational benefits.

11.  On 10 July 2009, the Office of the Assistant Secretary of the Army, Manpower and Reserve Affairs, Department of the Army, released the Post-9/11 GI Bill Policy Memorandum which identified program policies and established responsibilities, eligibility criteria, benefits, and detailed guidance on the 

administration of the program.  In this memorandum, the Army used DOD's definition for determining an eligible family member as defined in Directive Type Memorandum 09-003 (Post-9/11 GI Bill).  

12.  Title 10, USC, section 1072 (Definitions), paragraph (2)(D)(ii) includes in its definition of the term "dependent," for the purpose of determining eligibility for medical and dental care for members of the armed forces and their eligible dependents, a child who has not attained the age of 23.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be granted an exception to policy to transfer his educational benefits under the provision of the TEB because:

* his daughter Natasha is still enrolled in DEERS
* there is no reference in various program documents pertaining to TEB of the requirement to transfer educational benefits to a child prior to their reaching 23 years of age
* he was serving in a combat zone and isolated from all news topics when the TEB provisions of the Post-9/11 GI Bill went into effect; therefore, he never received the in-depth information other Soldiers received regarding the TEB
* he was misled, not only by official information published on numerous websites, but by the DOD, the education officers at Fort Bragg, NC, and the GI Bill call center representatives, as the information regarding the eligibility age cut-off is not public knowledge
* had the cut-off age restrictions been known, he would have transferred the benefits prior to Natasha reaching the cut-off age

2.  Title 10 and Title 38 state that a member's child ceases his or her eligibility for benefits upon reaching 23 years of age.  Regrettably, his daughter Natasha is no longer eligible to receive his unused educational benefits.

3.  The Army announced its Post-9/11 GI Bill implementation policy and procedures on 10 July 2009.  It is unclear how often, and during which timeframes, the applicant was deployed; however, it is presumed he had the opportunity, at some point since 10 July 2009, to transfer his unused educational benefits prior to his child reaching 23 years of age.  

4.  In view of the foregoing, there is an insufficient basis to grant relief in this case.


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)                                         AR20110007920



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ABCMR Record of Proceedings (cont)                                         AR20120008021



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