IN THE CASE OF:	  

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140011601 


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, correction of her record to show she submitted a timely application to transfer her Post-9/11 GI Bill education benefits to her son.

2.  She states she wants to transfer 35 months of her Post-9/11 GI Bill education benefits to her son, J_____ L. A_____.  She served on active duty from 28 February 2002 to 11 April 2011 with less than a 6-month break in service, and she is fully qualified for the Post-9/11 GI Bill.  She had continuously been attempting to transfer these benefits to her son prior to her erroneous release from active duty.  As a result of her erroneous release from active duty she was unable to transfer the benefits.  She has over 19 years of service and she was released from a warrior transition unit without her consent. 

3.  She provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 11 April 2011
* orders
* Defense Finance and Accounting Service-Indianapolis (DFAS-IN) Form 27-41 (Notice Concerning Claimed Dependency for Credit of Basic Allowance for Quarters)
* letters to her son from Northern Virginia Community College
* tuition payment history
* her son's Department of Defense (DOD) Civilian Leave and Earnings Statement (LES) for the period ending 29 January 2011
* her son's Certificate of Live Birth

CONSIDERATION OF EVIDENCE:

1.  On 6 February 1986, the applicant enlisted in the Regular Army, where she served through 8 April 1996 when she was transferred to the U.S. Army Reserve (USAR).  

2.  She provides a Certificate of Live Birth showing her son was born on 31 December 1989.  

3.  With the exception of a brief break in service in 2000, the applicant has continued her service in the USAR.  As a member of the USAR, she served on active duty during the following periods:

* 28 February 2002 to 22 August 2004
* 10 January 2001 to 28 February 2006
* 1 March 2006 to 28 February 2007
* 1 April 2007 to 11 April 2011

4.  Her record shows she was promoted to master sergeant/E-8 effective 1 December 2007.  

5.  She provides letters to her son from Northern Virginia Community College, dated 2 February 2011, showing he was enrolled as a half-time student during the Spring 2011 semester.

6.  She provides her son's LES for the period ending 29 January 2011 showing he worked as a DOD civilian in general schedule grade 3.  

7.  She provides a DFAS-IN Form 27-41, dated 4 April 2011, showing her claim for basic allowance for housing based on dependency of her son was approved effective 31 December 2010.

8.  On 15 April 2011, U.S. Army Garrison, Fort Belvoir, VA, issued Orders 
105-0003 releasing her from active duty effective 11 April 2011 and assigning her to the USAR Control Group (Reinforcement).  

9.  Her DD Form 214 for the period ending 11 April 2011 shows she completed 19 years and 2 days of active military service.


10.  On 12 March 2014, the U.S. Army Human Resources Command (HRC) issued Orders A-03-402344 ordering her to active duty to obtain 20 years of active Federal service in accordance with Title 10, U.S. Code, Section 12696 (commonly known as the sanctuary program).  She was ordered to report on 17 March 2014 to serve on active duty until 31 May 2015.  Her record shows she reported as ordered.

11.  Her transaction history in HRC's Integrated Web Services shows she contacted HRC on or about 2 June 2014 regarding transferring her Post-9/11 GI Bill education benefits to her son.  In response to her inquiry, HRC stated:

* her 24-year-old son was not eligible for transfer of benefits
* a 21-year-old child in school full time may request extended eligibility in the Defense Enrollment Eligibility Reporting System (DEERS)
* Public Law 110-252 states dependent children can use transferred benefits up to age 26
* a child must be an eligible dependent at the time of transfer
* to be considered an eligible dependent, a child must 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 is unmarried (as verified by DEERS)
* by law, benefits can only be used by a dependent child before their 26th birthday
* she could apply to this Board to request a correction to a perceived error or injustice in her military records

12.  DOD Directive-Type Memorandum 09-003, dated 22 June 2009, established the criteria for eligibility and transfer of unused educational benefits to eligible family members.
	
	a.  Eligible individuals include members of the Armed Forces on or after 1 August 2009 who, at the time of the approval of their request to transfer entitlement to educational assistance under this section, are eligible for the Post-9/11 GI Bill, and:

	b.  have at least 6 years of service in the Armed Forces on the date of election and agree to serve 4 additional years in the Armed Forces from the date of election; or


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

	d.  were or became retirement eligible during the period 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.)  For those individuals who had an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service was required.  For those individuals eligible for retirement:

* on or after 1 August 2009 and before 1 August 2010, 1 year of additional service was required
* on or after 1 August 2010 and before 1 August 2011, 2 years of additional service was required
* on or after 1 August 2011 and before 1 August 2012, 3 years of additional service was required

13.  During the implementation phase of the program (the first 90 days), many Soldiers were unaware of the requirements for transferring Post-9/11 GI Bill education benefits.  The Army, DOD, and VA initiated a massive public campaign that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and transfer of benefits.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support correction of the applicant's record to show she submitted a timely application to transfer her Post-9/11 GI Bill education benefits to her son.

2.  The applicant was eligible to transfer her unused educational benefits to her son when the program began on 1 August 2009.  Her son would have been age 19 when the program began, and he would have been eligible to be enrolled in DEERS until he reached age 21 on 31 December 2010.  Had she applied during the period 1 August 2009 to 30 December 2010, it appears her transfer would have been approved.  

3.  Other than her own statement, there is no evidence indicating she attempted to transfer education benefits to her son prior to her release from active duty in April 2011.  Her son would have been age 21 at that time.  She provides letters indicating he was a half-time student at Northern Virginia Community College during the Spring 2011 semester.  As such, he would not have received extended eligibility for DEERS enrollment, and she would not have been able to transfer education benefits after his 21st birthday.  

4.  It appears she did not serve in the Selected Reserve during the period between her release from active duty in April 2011 and her return to active duty on 17 March 2014.  She was not eligible to transfer education benefits during this period.  

5.  Her son reached age 23 on 31 December 2013, and could not be enrolled in DEERS after that date.  After she returned to active duty in 2014, HRC properly explained to her why her son, now age 24, is not eligible for transfer of benefits.  

6.  Although she should have been retained on active duty in 2011 as a sanctuary-eligible Soldier, it appears the decision to release her from active duty had little impact on her eligibility to transfer her education benefits to her son.  The primary limiting factor was the age and student status of her son, a problem she could have avoided by transferring her education benefits to him at the first opportunity.  It is reasonable to expect a senior noncommissioned officer to have been aware of the program and to have taken appropriate action in a timely manner.  

7.  In view of the foregoing, there is an insufficient basis upon which to grant 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)                                         AR20140011601



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ABCMR Record of Proceedings (cont)                                         AR20140011601



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