IN THE CASE OF:	  

		BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140004423 


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 an exception to policy to change the allocation of benefits from one son to another under the Transfer of Benefits (TEB) provision of the Post 9-11 GI Bill.

2.  The applicant states:

	a.  He requests that the current allocation of his unused education benefits under the Post 9-11 GI Bill be adjusted so that he will be able to transfer part of his educational benefits to his son, Luke.  He also requests an expedited adjudication of his case in order to meet the April 2014 deadline for payment of tuition and fees imposed by the Florida Institute of Technology (FIT).  He understands that appeals can take a significant amount time - up to a year.  The problem he is facing is that he believed that the transfer was completed in 2011, and that all he needed to do was retransfer the 12 months to his son Luke from his other son Stephen so that he would have the certificate of eligibility to attend college.  Luke was accepted to FIT and the Reserve Officers' Training Corps (ROTC) Program in January 2014.  The school agreed to extend the tuition fees until the end of April pending receipt of the certificate of eligibility.  Due to the impending deadline for tuition and fees, he is facing financial hardship due to the error in processing his transfer of educational benefits and lack of communication from milConnect and the Department of Veterans Affairs (VA) regarding the status of the transfer.  

	b.  He initially allocated 12 credits/months to his son Stephen and 24 to his daughter Rachel in June of 2011, and listed his spouse and two other sons, Mark and Luke, with zero credits allocated.  The website provided the following information: "if you wish to transfer credits at a later date you have to enter the dependents that you have on the Defense Enrollment Eligibility Reporting System (DEERS) program list."  So, he assigned credits to his oldest (Stephen) and youngest (Rachel) children with the understanding that he would be able to transfer benefits to another family member at a later date if the need arose.  

	c.  In June of 2011, when the need arose to transfer benefits while he was on active U.S. Army Reserve (USAR) duty, he correctly completed the online transfer through the milConect website and submitted the request for the transfer of benefits for processing.  Not being much of a computer/tech guy, he did not believe the website was very user friendly, but continued through the process the best he could.  It seemed absolutely logical that the list of his five dependents being displayed on the "Submit Transfer Request" would indicate that any of the five would have access to his educational benefits at a time of his choosing.  Again, the website not being user friendly left him no assurance of this, so he printed the document to have a hard copy on file.  

	d.  His son, Luke, enrolled in the ROTC program at FIT in Melbourne, Florida in January of 2014, four months after the applicant’s retirement.  He needed to provide proof of the transfer of 12 credits from his son Stephen to his son Luke to FIT for the eligibility certificated.  He was informed by the VA in Muskogee, OK that because he did not submit at least one credit hour to Luke and his other dependents that he was unable to make any changes.  Having not seen one thing on the website or receiving any notifications regarding the transfer of benefits which he submitted in 2011, he was appalled to be informed by the VA, not the milConnect website he submitted the request on, that each dependent needed to have at least one credit/month allocated to be eligible for later transfer.  Furthermore, because he did not make the changes before he retired (September 2013) he would be unable to make any further changes. 

	e.  It was not his intention at any time to not allow any of his other children to be eligible for future benefits or transfers.  If that were the case, he would not have submitted their names in the first place.  During this appeal process, he has spoken to Master Sergeant (MSG) M----el O’N--l and supervisor H----er H--t of the Finance and Incentives Branch of the Army Continuing Education Division, U.S. Army Human Resources Command (HRC) at Fort Knox, KY.  They informed him that there have been similar incidents and issues that have occurred from the milConnect website in its infancy.  The website has since been modified several times to make it a much more user friendly process.  MSG O’N--l informed him that they were unable to make any adjustment through their systems because they do not have access to the DEERS Program and referred him to this Board.  He believes he is being denied the ability to transfer educational benefits to his children that he has earned and he is entitled to because of an error through the computer system and the start-up process for transferring benefits. 

	f.  He understands that the Post 9-11 GI Bill benefit is used as a retention tool for Army recruitment, he has met the entire requirements for the benefits, and he does not understand why after retirement that he is unable to delegate the benefit to his dependents as he chooses.  With the projected downsizing of the defense and eligible veterans retiring and ending their tours of service he hopes that this isn’t a common issue that they have to deal with during their transition to civilian life.  He does not know if there is any legislation in place to ease the system or correct the flaws.  The milConnect web site was very confusing and not user friendly without the supervision of someone who is knowledgeable of the process of completing the online reassignment of the Post 9-11 GI Bill benefits.

3.  The applicant provides:

* Printout from the DOD TEB
* Printout from milConnect
* Letter, dated 25 February 2014, from the VA
* Retired Reserve orders 

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in August 1958.  He will turn 60 years of age in August 2018.

2.  Having had prior service, he enlisted in the U.S. Army Reserve (USAR) on 3 November 2000.  He served through multiple extensions or reenlistments and he attained the rank/grade of MSG/E-8. 

3.  On 21 July 2011, HRC issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). 

4.  On 17 September 2013, Headquarters, 81st Regional Support Command published orders transferring him to the Retired Reserve effective 17 September 2013.  

5.  It appears that in January 2014, using the DOD TEB website, he submitted a TEB request.  He listed his wife, Marie, and 4 children (Mark, Luke, Rachel, and Stephen).  He allocated 24 months of benefits to Katherine, 12 months to Stephen, and zero months to his spouse and two other children, Mark and Luke. He also indicated that: 
* he is eligible for the Post 9-11 GI Bill, the program he is applying the transfer
* he understands he may transfer up to 36 months of his education benefits to his spouse and/or children and can modify or revoke his election at any time

6.  On 15 January 2014, an official at the Education Incentive Branch, HRC, entered the following remarks in the HRC Interactive Web Service pertaining to the applicant: 

We received your fax, which included DD Forms 214 (Certificate of Release or Discharge from Active Duty) documenting qualifying service for contingency operations.  Since you may not have received notification of the prior rejection, we have approved your request dated 6/7/2011.  Your approval form is attached.  Since you are now in a retired status, you cannot allocate months to dependents that did not have benefits transferred to them before your retirement.  However, if you believe you are eligible, there is a formal process to request a correction to a perceived error or injustice to your military records.  The ABCMR is the highest administrative board in the Army (established by Title 10 U.S. Code, section 1552).  You will have to provide full justification and evidence of the error and injustice. 

7.  On 25 February 2014, by letter, the VA notified him that his request to allocate 12 months from his son, Stephen, to his son, Luke, was received but the VA was unable to complete his request because Luke is not showing as an 
already-declared dependent in the TEB portal.  The DOD TEB screen only shows Stephen and Katherine as recipients of the benefit.  He is able to re-allocate benefits between the two dependents or himself.  

8.  Public Law 110-252 limits the eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve.  

	a.  A Soldier must be currently 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 to eligible children.  

	c.  A Soldier may only transfer 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).  Wards of State are not eligible for the benefits.  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.  A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90 days) of the program.  The Army, Department of Defense (DOD), and 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 DOD TEB online database.  The TEB online database was operational 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 family members can be made at anytime, to include once a member leaves 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.  

	i.  The VA is restricted to pay for education benefits by compensating no more than one retroactive year from the date a claim is received by the VA.  

9.  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.

10.  Title 38, U.S. Code, section 3319, prohibits service members no longer on active duty from transferring educational benefits.  The legislation specifically states "an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed."  

DISCUSSION AND CONCLUSIONS:

1.  While in the Selected Reserve, the applicant submitted a request to transfer his education benefits under the TEB.  He allocated 12 months of unused benefits to his son, Stephen, and 24 months to his daughter, Katherine.  He allocated zero benefits to his spouse and his two other children, Luke and Mark.  

2.  The Army, DOD, and VA conducted massive public campaigns that generated major communications through military, public, and social media venues.  The information was published well in advance with emphasis on the criteria.  A Soldier must meet various criteria to qualify for transfer of benefits to an eligible family member; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer.

3.  The law that governs the Post 9/11 TEB allows a member who transferred his or her benefits while on active duty or in the Selected Reserve to reallocate or revoke the months of entitlement after he or she retires.  However, this is only allowed to a dependent or spouse for whom the member has already transferred at least one month of the entitlement to.  In the applicant's case, he did not allocate at least one month to his wife, Luke, or Mark.  Therefore, his wife and his two children, Luke and Mark are ineligible for the transfer. 

4.  There is insufficient evidence to show an error or an injustice in the applicant's transfer of benefits processing.  In view of the foregoing, he 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)                                         AR20140004423





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ABCMR Record of Proceedings (cont)                                         AR20140004423



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