IN THE CASE OF:	  

		BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140007288 


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, to adjust the Post-9/11 GI Bill Transfer of Education Benefits (TEB) Obligation End Date (OED) and the Department of the Army TEB Service Obligation to 31 October 2011, his last day on active duty.  He further requests the approximately $33,000.00 debt placed against his daughter be waived and his Post-9/11 GI Bill TEB entitlement be reinstated. 

2.  The applicant states:

   a.  Before he retired on 31 October 2011, he submitted a request to transfer his Post-9/11 GI Bill benefits to his daughter.  The request was processed and approved.  His daughter has been attending college for almost two years with the assistance of his Post-9/11 GI Bill benefits.  Each semester the payment request from Eastern Michigan University was sent and payment approved by the government. 

   b.  On 6 March 2014, almost two years after his daughter first used the Post-9/11 GI benefit, he was made aware of the debt notification she received from the Department of Veterans Affairs (VA).  He immediately contacted the VA and he was told that his transfer of benefits was not authorized.  In order to transfer the benefit, he had to remain on active duty until 23 November 2014; therefore, a debt was issued to his daughter for $33,000.00.  

   c.  If there was an error, he was not responsible for it.  He fulfilled his obligations as they were known to him and now, due to this error, his family must pay and it is totally unacceptable.  He believes he is entitled to the benefits which were approved and received by his daughter and they should not be made to pay for an error made by the government.

   d.  He was not made aware that his transfer of benefits was not authorized and to date, he has received nothing stating so, or that he would have to serve additional time on active duty in order to be able to transfer benefits.  He honorably served his country for over 20 years and he finds it unbelievable that an error on the government’s part is being placed on his family.

   e.  If he had not been approved for the transfer of benefits, his daughter may not have gone to the university, or he would have used other benefits that he is entitled to as a disabled veteran.  However, he believed he was approved and entitled to the benefits and now his daughter has a $33,000.00 debt placed against her.  He hopes the matter will be promptly corrected, the debt cleared, and his benefit reinstated.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter, dated 24 August 2012
* a letter, dated 6 March 2014

CONSIDERATION OF EVIDENCE:

1.  After completing over 20 years of honorable service, the applicant was placed on the retired list on 1 November 2011, in the rank/grade of staff sergeant/E-6.

2.  During the processing of this case, on 5 June 2014, an advisory opinion was obtained from the Chief, Education Incentives Branch, U.S. Army Human Resources Command.  The advisory official recommended disapproval of the applicant's request to adjust the Post-9/11 GI Bill TEB OED and the Department of the Army TEB Service Obligation to coincide with his last day on active duty of         31 October 2011.  The official stated:

   a.  Public Law 110-252 establishes 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 Selective Reserve on or after 1 August 2009.  Based on the details below, they did not recommend administrative relief for the applicant because he did not fulfill the TEB service obligation.


   b.  A Soldier must be currently on active duty or a member of the Selected Reserves at the time of transfer of education benefits to his or her dependent      (on or after 1 August 2009).  The applicant was on active duty when he requested TEB.  He transferred his Post 9/11 GI Bill benefits on 23 November 2010, which was before he left military service.

   c.  A Soldier must have at least six years of eligible service in order to transfer education benefits to a spouse and at least ten years of eligible service to transfer to eligible children.  The applicant had 17 years of service as of the program’s implementation date of 1 August 2009; therefore, he was eligible to transfer to either his spouse or his children.

   d.  A Soldier may only transfer to eligible dependents.  To be considered an eligible dependent the spouse or child must be enrolled in the Defense 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).  Wards of state are not eligible for the benefit.  Once the benefits are transferred, children may use the benefit up to the age of 26.  The TEB online database shows the applicant had three eligible dependents enrolled in DEERS.  He transferred benefits to his dependents on 23 November 2010.

   e.  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.  The applicant transferred education benefits via the TEB online database on            23 November 2010; therefore, he incurred an additional service obligation and a TEB OED of 23 November 2011 (a one-year service obligation was assigned by the Regular Army Career Counselor).  The actual TEB OED and the additional service obligation should have been 22 November 2013 (a three-year service obligation) since the applicant only had 17 years of active duty as of 1 August 2009.  

   f.  Even so, he did not fulfill either service obligation because he retired effective 1 November 2011.  Also, it is likely he applied for TEB after he submitted a request for retirement.  When he later requested TEB and was approved for TEB with the TEB OED of 23 November 2011, he should have either requested an extension of one month to his retirement date or he should have revoked TEB since he would not have been able to fulfill the TEB OED.  The TEB OED was visible on the TEB web-page and on the TEB approval form.

   g.  A Soldier must have no adverse action flag and have an honorable discharge to transfer benefits.  There is no evidence of an adverse action in the applicant’s record.

   h.  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.  The applicant was in the U.S. Army beyond the implementation phase; therefore, he had access to information regarding the requirement to request TEB through the Department of Defense TEB online database and information on the TEB OED.

   i.  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.  The applicant refers to a $33,000.00 debt which the VA has initiated due to the applicant not fulfilling the TEB OED.  The applicant states the VA should have noticed he did not fulfill the TEB OED, should not have issued a Certificate of Eligibility, and should not have initiated tuition/fee payments to the school and books/supplies/housing payments to his daughter.  The applicant is correct that the VA should have noticed during the initial TEB usage request from his daughter that he did not fulfill the TEB OED.  In theses cases, the VA permits the veteran to submit a request for relief through the VA Board of Appeals.

   j.  Changes in the amount of months allocated to dependents can be made at anytime, to include once the service member has left military service, provided the service member allocates at least one month of benefits prior to separation.  If the service member allocates zero months, and subsequently leaves military service, they are not authorized to transfer unused benefits.  The TEB website shows action was taken by the applicant to transfer benefits on 23 November 2010.

3.  On 12 June 2014, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to adjust the Post-9/11 GI Bill TEB OED and the Department of the Army TEB Service Obligation to coincide with his last day on active duty of 31 October 2011, to waive the approximately $33,0000.00 debt placed against his daughter, and to have his Post-9/11 GI Bill TEB entitlement be reinstated has been carefully examined; however, it was found to lack merit. 

2.  The applicant had 17 years of service as of the program's implementation date of 1 August 2009; therefore, he was eligible to transfer his Post 9/11 GI Bill benefit to his daughter.  He transferred benefits to his daughter on 23 November 2010; therefore, he incurred an additional service obligation and a TEB OED of 23 November 2011 (a one-year service obligation was assigned by the Regular Army Career Counselor).  Further examination revealed the actual TEB OED and the additional service obligation should have been 22 November 2013 (a three-year service obligation) since he only had 17 years of active duty as of 1 August 2009.  

3.  Regardless, he did not fulfill either service obligation because he retired effective 1 November 2011.  He was in the U.S. Army well beyond the implementation phase; therefore, he had access to information regarding the requirement to request TEB through the DOD TEB online database and information on the TEB OED.  There is no evidence he exercised due diligence. 

4.  With regard to his daughter's approximately $33,000.00 debt which the VA initiated due to the applicant not fulfilling the TEB OED, the VA permits the veteran to submit a request for relief through the VA Board of Appeals.

5.  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)                                         AR20140007288





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007288



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1