BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20140021622 


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, the step-daughter of a deceased former service member (FSM), requests correction of the FSM's records to show he elected to transfer his Post-9/11 GI Bill educational benefits to her.

2.  The applicant states the FSM retired from active duty on 31 December 2009.

	a.  She states the FSM never used any of his GI Bill educational benefits because he wanted her to be able to go to college.  He emailed a brochure about the program to her mother and also told her he had transferred 36 months of benefits to her.  She worked hard in high school to obtain college-level course credits to reduce the time it will take her to complete college.

	b.  In March of 2012, the FSM attempted to commit suicide as a result of his post-traumatic stress disorder.  Shortly thereafter, the FSM divorced the applicant's mother.  The FSM died from cancer on 11 September 2013.

	c.  The Department of Veterans Affairs (VA) told the applicant's mother that the FSM only transferred 1 month of educational benefits.  This doesn't make sense and must be an error based on what the FSM told her.  If that is the case, she believes the FSM did not understand that he transferred only 1 month of his educational benefits to her.



3.  The applicant provides:

* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty)
* FSM's death certificate
* applicant's birth certificate
* FSM's marriage certificate
* FSM's divorce decree
* email and text messages
* VA Certificate of Eligibility

CONSIDERATION OF EVIDENCE:

1.  The FSM's DD Form 214 shows he retired from active duty in the rank of sergeant first class/pay grade E-7 on 31 December 2009.  He completed 20 years and 10 days of total active service.

2.  The applicant provided the following documents in support of her application:

	a.  A State of Texas, Certification of Vital Record, Department of State Health Services, Vital Statistics Unit, shows the applicant was born in September 1997 and that M____ S. S____ and K____ M. P____ are listed as her parents.

	b.  A State of New  Mexico, County of Dona Ana, Marriage License and Marriage Certificate, show the FSM and K____ M. K____ married on 31 December 2005.

	c.  Email/text messages between the FSM and K____ K____ show:

* on 31 July 2008, the FSM sent her a copy of a brochure for the 
Post-9/11 Veterans Assistance Act of 2008
* on 23 September 2009, the FSM wrote, "I did it; transferred it to Sarah"
* on 30 August 2012, the FSM wrote, "I told you that I wouldn't change the benefits on the GI Bill for Sarah, but per Federal Regulation this can't be in the Divorce Decree legally as a divisible marital asset"
* on 31 May 2013, K____ K____ asked for a point of contact for the GI Bill

	d.  A Kyle Police Department Summary Report shows the police responded to a verbal disturbance at a residence on 18 March 2012.  The FSM, K____ K____, the applicant, and her brother were present.  The FSM had been in the possession of a handgun and had threatened to take his own life.

	e.  The divorce decree in the matter of the marriage of K____ M. K____ and the FSM in the District Court, 22nd Judicial District, Hays County, Texas, shows the agreed final decree of divorce was granted on 15 February 2013.  It also shows there is no child of the marriage of the parties.  Further, it identifies the applicant (the biological child of K____ M. K____ and the step-daughter of the FSM) as the sole beneficiary of the FSM's GI Bill benefits at the time of his separation from the U.S. Army and that she remains the sole beneficiary of these benefits.

	f.  A State of Texas, Certification of Vital Record, Department of State Health Services, Vital Statistics Unit, shows the FSM died on 11 September 2013 and he was divorced at the time of his death.

	g.  A Muskogee Regional VA Office, Muskogee, OK, Certificate of Eligibility, dated 21 November 2014, shows a VA Education Officer certified the FSM transferred 1 month of full-time educational benefits to the applicant beginning 14 November 2013; she has 1 month of benefits remaining; and she will remain eligible under the Post-9/11 GI Bill prior to 1 August 2022.

3.  In connection with the processing of this case, the Finance and Incentives Branch, Army Continuing Education Division, U.S. Army Human Resources Command (HRC), was asked to verify information relevant to the FSM's 
Post-9/11 GI Bill Transfer of Education Benefits.  An HRC official confirmed the FSM transferred 1 month of educational benefits to S____ G. S____ (stepchild) on 23 September 2009 prior to his retirement on 31 December 2009.

4.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members.  This public law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.

	a.  An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least:

		(1)  6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; or

		(2)  the years of service as determined in Army regulations and established by the Secretary of the Army.

	b.  An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows:

		(1)  to the individual's spouse;

		(2)  to one or more of the individual's children; or

		(3)  to a combination of the individuals identified above.

	c.  Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.

5.  The VA is restricted to pay for educational benefits by compensating no more than 1 retroactive year from the date a claim is received by the VA.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM was fully eligible to transfer his educational benefits under the Post-9/11 GI Bill transferability program prior his retirement.

	a.  He had at least 6 years of eligible service in order to transfer educational benefits to his spouse and at least 10 years of eligible service to transfer educational benefits to eligible children.  He had more than 20 years of service upon his retirement.

	b.  He was serving on active duty as a member of the Regular Army on 1 August 2009 and his last day of active service was 31 December 2009.

	c.  He was eligible to transfer his educational benefits to his authorized dependents enrolled in the Defense Eligibility Enrollment Reporting System.

	d.  The FSM transferred 1 month of educational benefits to the applicant (his stepdaughter, S____ G. S____) prior to his separation from active duty.

	e.  The evidence of record shows that changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service.

2.  The FSM passed away on 11 September 2013.  Records show he did not transfer any additional educational benefits to the applicant.  However, the evidence of record shows the FSM acknowledged the applicant was the sole beneficiary of his GI Bill educational benefits.

3.  Therefore, as a matter of justice, it would be appropriate to correct his military records to show he transferred all of his remaining educational benefits under the Post-9/11 GI Bill transferability program to the applicant (S____ G. S____) prior to the date of his death.

BOARD VOTE:

___x_____  __x______  __x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 to show he transferred all of his remaining Post-9/11 GI Bill educational benefits to his eligible family member (the applicant) prior to his death, 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)                                         AR20140021622



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ABCMR Record of Proceedings (cont)                                         AR20140021622



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