IN THE CASE OF:
BOARD DATE: 24 January 2013
DOCKET NUMBER: AR20120010952
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 approval to transfer 12 months of his educational benefits to his dependent son under the Transfer of Educational Benefits (TEB) provision of the Post-9/11 GI Bill.
2. The applicant states he was deployed in support of Operation Enduring Freedom (OEF) from 30 August 2009 to 5 December 2010, leaving only 1 and 1/2 months until his mandatory retirement on 18 January 2011. He did not have access to the Defense Enrollment Eligibility Reporting System (DEERS) or the Department of Defense (DOD) website to correct his dependent listing. Due to a glitch in the system, he was not afforded the opportunity for corrections until he returned to the United States. His understanding was that as he is a Vietnam and OEF veteran, he can combine his education bills for a total of 48 months. He used approximately 36 months of his Vietnam-era education benefits, leaving him with 12 months of benefits. He wants to transfer his benefits to his son AM, date of birth (DOB) 27 December 1987. His son was 21 years of age as of 31 August 2009.
3. The applicant provides no additional evidence.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 1 December 1950. Having had prior active service, the applicant's records show he enlisted in the U.S. Army Reserve (USAR) on 1 July 1973. He served in staff and leadership positions and he attained the rank/grade of sergeant first class (SFC)/E-7 on 1 June 1999.
2. His records contain a DD Form 93, dated 18 July 2009, wherein it shows the applicant was married and had four children. This form confirms his youngest son, AM, was born on 27 December 1987. Therefore, this son would have turned 21 years of age on 27 December 2008.
3. The applicant was ordered to active duty as a member of his USAR unit in support of OEF and he entered active duty on 22 September 2009. He served in Afghanistan from 2 November 2009 to 14 September 2010.
4. He was honorably released from active duty on 5 December 2010.
5. Orders P04-943794, dated 13 April 2011, issued by the U.S. Army Human Resources Command (HRC), retired him from the USAR and placed him on the Retired List effective 19 January 2011.
6. In the processing of this case, an advisory opinion, dated 26 July 2012, was received from the Chief, Educational Incentives Branch, HRC. The advisory official recommended disapproval of the applicant's request and stated that Public Law 110-552 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits and limits eligibility to members of the Armed Forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009.
a. A Soldier may only transfer benefits to eligible family members. To be considered an eligible family member the spouse or child must be enrolled in the DEERS and be eligible for DEERS benefits. Children lose eligible family member status upon turning age 21 or at marriage. Eligible family member status can be extended from age 21 to age 23 only if the child is enrolled as a full-time student and unmarried (verified by DEERS). (Emphasis added) Once the benefits are transferred, children may use the benefits up to age 26.
b. The TEB online database shows the applicant had one eligible family member enrolled in DEERS, his spouse. He was eligible to transfer benefits only to his spouse. However, he did not complete the TEB online data base because he claims he was not aware of the requirement to transfer prior to leaving the service.
c. A Soldier should not be granted relief based on unawareness of law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program. The Army, DOD, and the Department of Veterans Affairs (VA) initiated a massive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits. The applicant's last day in service was 18 January 2011, which was not within 90 days after the program's implementation.
d. A Soldier must initially request the transfer through the DOD TEB online database. The TEB database was operational on 29 June 2009. Once approved in the TEB database, the information is automatically relayed to the VA. The respective dependent must then submit the application for VA educational benefits. The applicant did not take any steps to transfer education benefits.
7. In a response to the advisory opinion received on 17 September 2012, the applicant stated:
a. When the TEB online database became operational on 29 June 2009, his unit was already in activation status and he was engaged in non-deskbound training, remote from access to the TEB system. In addition, his unit fulfilled the OEF mission on 5 December 2010, leaving him less than 2 months before his involuntary, mandatory retirement on 18 January 2011 at age 60.
b. The advisory opinion states "Children lose eligible family member status upon turning age 21
Eligible family member status can be extended from age 21 to age 23
" He is not declaring ignorance of the requirements, he is contending he could not tabulate his son for eligibility because his name defaulted out of DEERS at age 21.
8. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individuals request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill and meets other criteria.
9. Public Law 110-252, section 3020, limits 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 on or after 1 August 2009. A Soldier must be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his/her dependent.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be allowed to transfer 12 months of his Post-9/11 GI Bill educational benefits to his dependent son because he did not have access to update DEERS once his son turned 21 years of age.
2. The evidence of record shows the applicant was transferred to the Retired List on 19 January 2011. His records show he was eligible to transfer any unused education benefits to only one dependent, his spouse; however, he did not do so while he was serving on active duty or in the USAR.
3. Notwithstanding his sincerity, although he was deployed to Afghanistan from 2 November 2009 to 14 September 2010 and may not have had direct access to the online database, there is no evidence that shows he attempted to transfer any of his education benefits prior to his deployment, after his return in September 2010, or anytime up to his last day of service in the Selected Reserve on 18 January 2011. The applicant stated he was aware of the requirements to do so.
4. In addition, although eligible family member status can be extended from age 21 to age 23, it is extended only if the child is enrolled as a full-time student and unmarried (verified by DEERS). There is no evidence, and the applicant did not provide any evidence, that shows his youngest son was a full-time student and unmarried after reaching age 21, or that he attempted to add him to DEERS after age 21, which occurred in December 2008, about 6 months before his unit entered activation status.
5. The requirement to transfer the benefits to an eligible dependent while a member is on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board. As his youngest son was not an eligible dependent, and the applicant failed to transfer the benefits to his only eligible dependent, his spouse, while in an active status, as required by law, there is an insufficient evidentiary basis for granting his 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) AR20120009844
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ABCMR Record of Proceedings (cont) AR20120010952
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