BOARD DATE:	  30 October 2014

		DOCKET NUMBER:  AR20140004799 


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 the remaining balance of his educational benefits under the provisions of the Post-9/11 Transfer of Benefits (TEB) program from his oldest son to his youngest son.

2.  The applicant states:

	a.  he is currently unable to transfer the remaining balance of his Post-9/11 GI Bill education benefit due to a technical error made while he was completing his request for transfer of his benefit.

	b.  he is at risk for losing the remaining 4 months and 16 days of his benefit that he earned while on active duty.

	c.  his oldest son S------ used a portion of this benefit and now there is a remaining benefit totaling 4 months and 16 days.  He respectfully requests the     4 months and 16 days be officially transferred to his son R---, who was listed as a recipient on his request form in 2009.  

	d.  the error was not placing at least one month in his allocation box.  The correction requested is to officially add this portion of his benefit to his son R---, so the Department of the Veterans Affairs (VA) can execute this benefit.

	e.  when he requested transfer of the remaining benefit in February 2014, he was informed by the VA that R--- was not eligible because he didn't allocate at least one month to him at the time he completed the request form in 2009.  
	f.  this technical error (listing R---, but not allocating at least one month) resulted from the omission of appropriate guidance by his command and he received insufficient instructions on the request form to complete it properly.  There was no guidance to ensure that he allocated at least one month to his son R--- to allow modification at a later date.  

	g.  in reviewing the TEB Acknowledgements, it stated in box b that "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."  This statement and lack of any other guidance led to listing R---, without any identified months of benefit with the assurance he could modify the benefit at any time.

	h.  it was not until February 2014 that he was informed that although listed on the form, R--- was not eligible due to the technical error and he couldn't use the benefit without a correction of military records to transfer the remaining period of benefit to R---.  

	i.  it is unacceptable that he is not allowed to transfer a benefit he earned while serving on active duty.  This injustice can be rectified with a correction of his military records to reflect a transfer of 4 months and 16 days of his remaining benefits to R---.  This would correct the injustice.  

3.  He provides a printout from the Department of Defense (DOD) TEB.  

CONSIDERATION OF EVIDENCE:

1.  After having prior Reserve commissioned service, the applicant was appointed as a Regular Army (RA) commissioned officer on 17 May 1986.  The applicant retired from the RA on 30 September 2011 in the rank/grade of colonel/O-6, after completing 25 years, 4 months, and 14 days of creditable active service.

2.  On 29 October 2009, using the DOD TEB website, he listed his wife, S----, and 2 children, R--- and S------.  He allocated 36 months of benefits to S------ and zero months to his spouse and other child, R---. 

3.  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 Defense Enrolment Eligibility Reporting System (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.  

5.  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 individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill and

	a.  has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or

	b.  has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute, or

	c.  is or becomes retirement eligible during the period from 1 August 2009 through 1 August 2013.  A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service.

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 for approval to transfer the remaining balance of his educational benefits under the provisions of the Post-9/11 Transfer of Benefits (TEB) program from his oldest son to his youngest son has been carefully considered and found to have merit.

2.  The Post-9/11 GI Bill was implemented on 1 August 2009 and information pertaining to the transferability of entitlements was disseminated down to education counselors at the installation level.  However, during the first 90 days of the program many Soldiers were not fully aware of all the requirements to transfer benefits.

3.  The evidence of record shows the applicant submitted a request to transfer his education benefits under the TEB on 29 October 2009, which is within 90 days of the implementation of the program.  He allocated 36 months of unused benefits to his son, S------.  He allocated zero benefits to either his spouse or his other son, R---.

4.  Therefore, it would be equitable to correct his records to show he transferred the remaining balance of his educational benefits under the Post-9/11 GI Bill TEB Program to his youngest son.

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 showing he transferred the remaining balance of his educational benefits under the provisions of the Post-9/11 GI Bill TEB program to his youngest son and the Army approved his request 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)                                         AR20140004799





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ABCMR Record of Proceedings (cont)                                         AR20140004799



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