BOARD DATE:	  4 March 2014

		DOCKET NUMBER:  AR20130010867 


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 youngest daughter under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill prior to retiring from active duty.

2.  The applicant states his dependent daughter (Megan) is 22 years old, permanently disabled, totally dependent on others for her self-care, and she will not be able to use any further educational benefits.  His other dependent daughter (Morgan) is 16 years old and she will be going to college in 2 years.  In May 2010, he mistakenly transferred 24 months of educational benefits to Megan whereas he should have transferred them to Morgan.

   a.  He states he had orders to retire from active duty effective 30 September 2010.  Shortly after he started the retirement process, he learned that he needed to have his third brain surgery.  During the surgery he suffered a stroke and was hospitalized for 6 weeks.  As a result, his retirement orders were rescinded and he was medically retired due to a cognitive disorder in November 2012.

   b.  He wasn't aware that he could not make changes to his educational benefits after he was retired and he didn't realize the error he made in the TEB until 25 May 2013.

   c.  He adds that he had no assistance with the retirement process and he had to request his Transfer Assistance Program briefings after he was retired (in March 2013).
3.  The applicant provides copies of two medical statements, his TEB submission for the Post-9/11 GI Bill, and DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a commissioned officer in the Regular Army on 25 May 1990.  He continued to serve on active duty and he was promoted to lieutenant colonel/pay grade O-5 on 1 February 2007.

2.  Orders 259-006, issued by U.S. Army Garrison, Fort Belvoir, VA, on 
16 September 2010, revoked Orders 063-0010, dated 4 March 2010, pertaining to the non-disability retirement of the applicant on 30 September 2010.

3.  On 29 May 2012, a Physical Evaluation Board convened and found the applicant's cognitive disorder (not otherwise specified) with spidermoid brain tumor and left homonymous hemianopia field deficit with optic nerve atrophy to be unfitting and recommended permanent disability retirement.

4.  A DD Form 2648 (Pre-Separation Counseling Checklist for Active Component Service Members) shows the applicant received counseling on his education benefits on 1 August 2012.

5.  A DD Form 2656 (Data for Payment of Retired Personnel), completed by the applicant on 9 August 2012, shows in section VII (Dependency Information) he listed his spouse and two daughters.  He also indicated that Megan was born in July 1990 and is disabled and that Morgan was born in December 1996.

6.  The applicant's DD Form 214 shows he was honorably retired from active duty on 21 November 2012 based on permanent disability and transferred to the U.S. Army Reserve Control Group (Retired).  He had completed 22 years, 
5 months, and 27 days of total active service.

7.  In support of his application the applicant provides the following documents:

   a.  Two Walter Reed Army Medical Center, Washington, DC, letters, dated 

11 March 2008 and 10 January 2010, that show the Associate Chief, Department of Neurology, and Chief, Division of Developmental Pediatrics, respectively, verified that the applicant's daughter (Megan) has a congenital brain disorder, is totally dependent on others for all her needs, and that her prognosis is for no neurologic improvement.

   b.  A DD Form 27-88 (Notice Concerning Claimed Dependency under the Dependency Medical Care Act), dated 4 May 2011, that shows the applicant established dependency for his daughter Megan.

   c.  A TEB printout, dated 26 May 2010, that shows the applicant transferred his educational benefits, as follows:

* spouse (Nannette M.) - 12 months
* child (Morgan N.) - 0 months
* child (Megan R.) - 24 months
* child (Torv I.) - 0 months

   d.  The TEB Acknowledgements shows, in pertinent part:

* I understand I may transfer up to 36 months (or my remaining months of eligibility, whichever is less) of my education benefits to spouse and/or children, and can modify or revoke my election at any time
* My conversion to the Post-9/11 GI Bill is irrevocable and may not be changed.  However, I retain the right to change or modify months of entitlement at any time until they are exhausted

   e.  The TEB Acknowledgements section does not show a requirement to transfer a minimum number of benefits to an eligible dependent to establish their eligibility.

   f.  Department of Defense (DoD), Manpower Data Center, Seaside, CA, letter, dated 28 May 2013, that shows the applicant's request to transfer his unused Post-9/11 GI Bill benefits to his family members was approved on 27 May 2010, for Nannette M. (12 months) and Megan R. (24 months).  It also shows "this represents the status of your transfer request as of the date of this approval confirmation.  You have the ability to make additions, changes, or revocations to the eligible family members and/or adjust the distribution of the transferred months through the TEB application as long as you stay in the Armed Forces.  Once separated, family members cannot be added to your transfer request.  However, you can change a transfer request submitted prior to separation."

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, 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his educational benefits under the Post-9/11 GI Bill transferability program prior to retirement.  

2.  On 26 May 2010, he transferred a portion of his educational benefits to his spouse and daughter Megan, but not to his daughter Morgan.

3.  The applicant remained on active duty through 21 November 2012 when he was retired due to permanent disability.

4.  The implementing policy guidance shows that, 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.

   a.  The TEB printout that the applicant was provided on 26 May 2010 listed his spouse (Nannette with 12 months) and his two daughters (Megan with 
24 months and Morgan with 0 months) of educational benefits.

   b.  The TEB Acknowledgements shows, in pertinent part, that he could modify or revoke his election at any time and that he retained the right to change or modify months of entitlement at any time until they are exhausted.  However, it does not show a requirement to transfer a minimum of 1 month of benefits to an eligible dependent to establish their eligibility.
   
   c.  The DoD issued its approval letter on 28 May 2013, more than 3 years later and 6 months after the applicant retired from active duty and advised that, "Once separated, family members cannot be added to your transfer request. However, you can change a transfer request submitted prior to separation."

    	(1)  The instructions provided on the TEB printout coupled with those in the DoD letter allow for a misunderstanding regarding changes to the benefits allocated to eligible family members.  In the applicant's case, both his daughters are listed on the 26 May 2010 TEB printout, whereas the 28 May 2013 DoD letter lists only the family members to whom the applicant had transferred educational benefits.
   	(2)  In addition to the DoD letter not being timely because it was issued after the applicant separated, the instructions are ambiguous.  That is, the DoD letter allows for the interpretation that the applicant could change the approved transfer that he had submitted prior to separation.

5.  Because it appears the applicant erroneously requested transfer of benefits to his daughter Megan, who was severely incapacitated, it would be appropriate in this case to correct the applicant's military records to show he elected to transfer a portion of his benefits to his daughter (Morgan N.) as an eligible family member under the Post-9/11 GI Bill transferability program prior to his retirement date.

BOARD VOTE:

___x__  ____x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 correcting his military records to show that he elected and the Army approved his 
request to transfer a portion of his benefits to his daughter (Morgan N.) as an eligible family member under the Post-9/11 GI Bill transferability program prior to his retirement date, provided all other program eligibility criteria are met.




      _______ _   _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)                                         AR20130010867



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ABCMR Record of Proceedings (cont)                                         AR20130010867



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