IN THE CASE OF:	  

		BOARD DATE:	    7 November 2013

		DOCKET NUMBER:  AR20130017790 


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, that she be allowed to transfer her Post-9/11 GI Bill benefits to her step-son.

2.  The applicant states, in effect:

	a.  She reenlisted indefinitely in order to transfer her GI Bill to her step-son, even though she didn't really want to reenlist after four deployments.  He was her stepson and then she took custody of him and raised him.  He went to college after the Department of Defense (DoD) approved the transfer of benefits.  Four months after he started college, the Department of Veterans Affairs (VA) notified her that he is ineligible for the benefit because he was a ward.  She may not have spent thousands of dollars to change his birth certificate, but she has spent more than half of her life raising an amazing young man.

   b.  The injustice is that she, in good faith, sent her son from Germany to the University of Illinois in Chicago because she received confirmation that her Post-9/11 GI Bill was transferred to him via the DoD.  A Member of Congress submitted congressional requests on her behalf and she is sending those documents to show what an injustice has occurred.  There were many errors that were not their fault and "laws" that she was unaware of.  

   c.  She is looking for equitable relief for this and would like her son to be able to use the benefits after he followed her around the world and dealt with her many deployments while she raised him by herself (with the help of her parents while she was deployed).  She is also looking to see what can be done for people who are facing the same issue.  The definition of a "parent" of a Soldier should also justify a Soldier being a "parent."  Code of Federal Regulations 3.59 defines a parent as "a person who for a period of not less than one year stood in the relationship of a parent to a veteran at any time before his or her entry into active service." 

3.  The applicant provides:

* 2010 transfer of Post-9/11 GI Bill benefits notification
* 2013 denial of benefits notification
* letter from the U.S. Army Human Resources Command (HRC) to a Member of Congress
* letter from a Member of Congress to the VA
* letter from her step-son
* Enlisted Professional Development Branch Memorandum for Record (MFR)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA), in pay grade E-3, on 22 October 1998.  She completed training and was awarded military occupational specialty 68G (aircraft structure repairer).  She reenlisted in the RA on 12 September 2008 and is currently serving on active duty.  

2.  A DD Form 93 (Record of Emergency Data), dated 4 October 2012, shows she completed the form and listed the child in question as her ward.

3.  On 20 July 2010, she was notified of the approved transfer of her unused Post-9/11 GI Bill benefits to her stepson with an effective date of 18 July 2010.

4.  On 18 January 2013, Headquarters, Department of the Army, Deputy Chief of Staff G-1, notified the applicant of the following:

   a.  Unfortunately, the requirements to be able to transfer Post-9/11 benefits were not simply Army policy.  The requirements are based on law.  The law clearly states that benefits may only be transferred to adopted children, step children, and biological children.  Wards of states are not eligible to receive transferred benefits.  Their office had no ability to allow her to an exception to policy due to the law.
   
   b.  However, the Transfer of Education Benefits (TEB) web page apparently allowed her to transfer to her ward, which it should not have done.  She transferred and committed to the additional service in good faith.  They believed she had grounds to appeal to the VA to keep the benefits or at least void the debt it had created.  If she decided to go forward with the appeal and wished support from their office, she could reply to them with her request.

5.  In a letter, dated 15 May 2013, the Director, Army Continuing Education Service, HRC, advised a Member of Congress of the following:

   a.  Service Members may transfer Post-9/11 GI Bill education benefits to their spouse and/or children in accordance with Public Law 110-252, section 3319(c), 122 Statute 2370 (2008).  Because Public Law 110-252 amended Title 38, U.S. Code (USC), to include chapter 33 (Post-9/11 GI Bill), the Title 38, USC, definition of child must be used, not the Title 10, USC (DOD) definition of a child.
   
   b.  When developing the TEB database, the Defense Manpower Data Center (DMDC) used the Title 10, USC definition of a child which included wards.  Therefore, dependents listed as wards were erroneously eligible to receive TEB. That continued until 1 August 2010 when DMDC realized it had erroneously used the Title 10, USC, definition of a child.  At that time, DMDC corrected the TEB database by listing wards as ineligible for TEB.  
   
   c.  During the timeframe of 29 June 2009 (first day TEB was accessible) to 1 August 2010, some dependents listed as wards were eligible to receive TEB.  That is the case for the applicant's ward.  A review of Defense Eligibility Enrollment Reporting System (DEERS) reflected he was enrolled in DEERS as a stepchild of the applicant from 22 October 1998 to 30 January 2003.  However, his enrollment changed from stepchild to ward on 10 September 2007.  Hence, when the applicant transferred benefits to her ward on 13 July 2010, her ward was listed as eligible in the TEB database.

	d.  Unfortunately, the applicant's ward enrolled and attended school while his application for eligibility was being processed by the VA.  On 18 November 2010, the VA correctly denied issuing a Certificate of Eligibility to him because he was identified as a ward.  That office would like to assist; however, they were restrained by Public Law 110-252 in making him eligible to receive TEB.

6.  In a letter, dated 5 June 2013, the VA advised a Member of Congress of the following:

	a.  The applicant was eligible for education benefits under the Post-9/11 GI Bill Education Assistance Program at the 100 percent level based on her qualifying active duty served after 10 September 2001.

	b.  The applicant applied for TEB benefits to be transferred to her ward and was erroneously awarded the benefit by the DoD.  However, the VA correctly denied his application because wards and foster children are ineligible to receive TEB according to law.  The VA does not determine eligibility for TEB.  The DoD determines eligibility for TEB and the VA administers the payments.  The VA cannot establish eligibility for TEB benefits until DoD approves the service member's request to transfer benefits.

	c.  The DoD record has been updated indicating the applicant has not been approved for the transfer program.  While they are not without compassion for her situation, they were unable to offer any assistance with that problem.  If the applicant's request was not approved by DoD, the VA cannot grant benefits to her dependents.  There are no provisions in the law that would allow the VA to circumvent that requirement.

7.  The applicant provides copies of the following:

   a.  Her ward's disagreement letter in his appeal to the VA decision.

   b.  An MFR, dated 17 September 2013, wherein the Chief, Enlisted Professional Development Branch, HRC, stated, in effect, wards of the State are not eligible to receive transferred Post-9/11 GI Bill benefits.  Only eligible children and/or spouse is eligible to received the transferred benefits based on Public 
Law 110-252, section 3319, 122 Statute 2370 (2008).

8.  Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  Further, Public Law 110-252 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to allow her to transfer her educational benefits under the TEB provision of the Post-9/11 GI Bill to her ward.

2.  The evidence of record shows that in September 2007 she changed the DEERS enrollment of the child in question from stepchild to ward.  In July 2010, she applied and was approved for transfer of her education benefits in the TEB database to her ward.  At the time, the database erroneously listed that wards were eligible to receive TEB using the Title 10, USC, definition of a child.  This stopped in August 2010 when they realized the error and the database was corrected by listing wards as ineligible for TEB.

3.  The applicant is commended for continued honorable service; unfortunately, this incentive was not available to her and her ward in accordance with Public Law 110-252 and it is still not available to them unless Congress changes the law.

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)                                         AR20130017790



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ABCMR Record of Proceedings (cont)                                         AR20130017790



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