BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130019931 


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 to transfer education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to her son.

2.  The applicant states:

   a.  When she first learned in 2009 that she was eligible to transfer benefits to her son and daughter she went online to set up the transfer; however, she was unable to see the transfer on the screen.  She went to the education center at her duty station and was assisted by one of the ladies who worked there.  They discussed her eligibility and she was informed her children could use the benefit until age 26.  At the time she believed she had set up her son and daughter for 18 months each.

   b.  A few months later she checked the site and noticed that her son and daughter showed zero months allocated.  She went back to the education center to receive more assistance.  It was not until she was due to separate from service that she was told by a representative of the Soldier and Family Assistance Center (SFAC) that there were still zero months showing for her children.  At that time the SFAC representative discussed the benefit of adding her husband while she was still on active duty (even for one month just in case he ever wanted to use the benefit).  She updated her account adding her husband for one month and her daughter for 35 months.  

   c.  She was not able to add any months for her son because he was over     23 years old at the time.  She was told her son was still eligible to use benefits up to age 26 and his name still appeared under the list of family members.  She was told when he enrolled in school she would be able to transfer the months at that time.  Her son is scheduled to attend a 12 month technical course for electricians on 24 October 2013.  Now she is being told she cannot transfer any months to him.

   d.  She does not know if she was misinformed all along or if the representatives were unable to work with the new program/system at the time.  She certainly would have done all that was needed to take advantage of her benefits if she was told otherwise.  She has never been able to take advantage of any of her education benefits and only wishes to have her children benefit from her service.  She has been repeatedly mobilized since 2003 and has worked long hours in support of our country at war.
   
3.  The applicant provides two screen shots of the TEB web site and a copy of an SFAC, Guidance Counselor's business card. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having 10 years, 9 months, and 26 days of prior active duty service, the applicant entered active duty as a member of the U.S. Army Reserve on           22 November 2004.  She was honorably released from active duty in the rank of master sergeant on 18 April 2012 after completing 7 years, 4 months, and         27 days of net active duty service during this period.

3.  The applicant's record contains a DD Form 93 (Record of Emergency Data) which identifies her son's date of birth as 18 April 1988.

4.  The applicant provides a screen shot from the Defense Manpower Data Center TEB website dated:

   a.  23 February 2010, which shows the applicant was on the TEB site and shows her spouse and daughter as eligible family members.  There is no indication that she submitted a request to transfer benefits to her son; and 

   b.  12 January 2012, which shows she submitted a request to transfer benefits to her spouse. 

5.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public 
Law 110-252, House of Representatives, 2642.  In July of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The Department of Veterans Affairs (VA) is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  A Soldier must currently be on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent on or after 1 August 2009.  

	b.  A Soldier must have at least 6 years of eligible service in order to transfer educational benefits to a spouse and at least 10 years of eligible service to transfer benefits to eligible children.  

   c.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for DEERS benefits.  Children lose eligible dependent status upon turning age 21 or at marriage.  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 (verified by DEERS); the child will lose eligibility status upon less than full-time status or graduation.  Wards of the State are not eligible for the benefit.  Once the benefits are transferred, children may use the benefits up to age 26.  

	d.  A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1 August 2009.  
	
   e.  A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.  

	f.  The Army, the Department of Defense, and the 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.  

	g.  A Soldier must initially request to transfer benefits on the Department of Defense's TEB online database.  The TEB online database was operational on 29 June 2009.  Once approved in the TEB online database by the Soldier's service, the approval information is automatically relayed for VA access.  The respective dependent must then submit an application for VA educational benefits, VA Form 22-1990e, to request to use the benefits.  

	h.  Changes to the amount of months allocated to dependents can be made at anytime, to include once you leave military service, provided the service member allocates at least 1 month of benefits prior to separation.  If the service member allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits.  

6.  The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct her record to show she was eligible to transfer her Post-9/11 GI Bill benefits to her son has been carefully considered.  

2.  The available evidence appears to show the applicant was fully eligible to transfer benefits to her eligible dependents; however, there is insufficient evidence to show the applicant's son was eligible to receive a transfer of her education benefits. 

3.  A Soldier may only transfer their benefits to eligible dependents.  To be considered an eligible dependent her son had to be enrolled in DEERS and be eligible for DEERS benefits.  Children lose eligible dependent status upon turning age 21 or at marriage.  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 (verified by DEERS); the child will lose eligibility status upon less than full-time status or graduation.  Once the benefits are transferred, children may use the benefits up to age 26.  
4.  Evidence shows her son was over 21 years old when she claims she initially attempted to transfer her benefits upon implementation of the program in August 2009.  There is no evidence in her record and she did not provide any evidence to show her son was enrolled as a full-time student in August 2009 in order to extend his eligibility to receive benefits.

5.  In view of the foregoing, she is not entitled to the 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)                                         AR20130019931





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ABCMR Record of Proceedings (cont)                                         AR20130019931



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