BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20150000223 


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 correction of his records to show he elected transfer of educational benefits to his dependent sons H.E.W. and M.S.W. under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill, in addition to the two dependents he transferred the benefits to.

2.  The applicant states:

* there is not much he can give his children who followed him during their growing-up years and had to be uprooted during high school because he was again being transferred
* receiving the educational benefits is one small way he can demonstrate his appreciation for the sacrifices they made during his career
* he elected to transfer his Post-9/11 GI Bill benefits to his dependents at the time it was first authorized in June 2009 because he already had a master's degree and had no further need for the benefit himself
* he received the authorization for the transfer in June 2009
* at the time, none of his dependents were in college and would not be attending college for a few years
* when he submitted his request for TEB to his dependents, he included all of them as recipients as he was unsure which dependent would need it and wanted them all to have the opportunity to use it when the time came
* in October 2011 his oldest child was attending Belhaven University
* at that time he submitted the requisite Department of Veterans Affairs (VA) Form 22-1990e (Application for Family Member to Use Transferred Benefits) requesting that she begin receiving the educational benefits
* in December 2011 he received the approval letter authorizing her to begin use of the benefits
* to date she has used 18 months of the 36 months he is authorized to transfer to his dependents
* she graduates in December 2014 and will no longer need the educational benefits – however, he has three remaining children who will need to use the benefits
* in October 2014 he applied to the VA using VA Form 22-1990e requesting that his next child, H.E.W., receive the remaining 18 months of education benefits
* in November 2014 he received a letter from the Oklahoma Office of VA Education Benefits notifying him that no other dependents were eligible to receive his transferred educational benefits
* when he inquired as to why they are no longer eligible, the response was that he failed to pre-check 1 month of benefits for each of his dependents prior to retiring and was told he can no longer go back online and change his dependent status in order to transfer his educational benefits
* the online educational benefits page is no longer accessible for him to change the status of his dependents and neither the VA nor the Department of Defense (DOD) can change this status without approval of the Army Review Boards Agency
* he believes this to be unjust and unfair
* the first he heard of the rule to set aside 1 month of eligibility for each dependent before retiring was when he received the VA letter in October 2014 denying his son's request for the educational benefits
* it was at that time that he began to call the VA, DOD, and the Army in the Pentagon to inquire as to why his other dependents were not eligible
* a master sergeant at the Pentagon researched the issue for him and provided assistance – he found that others who signed up for the TEB during the initial phase in early 2009 experienced similar difficulties with the TEB not being assigned
* at the time he requested the TEB, it was unclear how the process would work and the rules were still being developed
* when he retired from the Army he was stationed at Redstone Arsenal, AL, and they did not offer the Army Career and Alumni Program because it was a small installation with very few active duty military personnel
* when he was briefed during his retirement processing there was neither discussion nor information given concerning the VA educational benefits
* he requests the board be lenient and understanding of his situation and allow him to transfer the remaining 18 months of his educational benefits to his remaining dependents


3.  The applicant provides:

* Manpower Data Center TEB approval letter, dated 12 December 2014
* screen shot from the eBenefits education benefits transfer page
* self-authored letter
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA letter of eligibility for Post-9/11 GI Bill benefits, dated 11 June 2009
* Headquarters, U.S. Army Garrison-Redstone, Orders 022-0001, dated 22 January 2013

CONSIDERATION OF EVIDENCE:

1.  After a period of prior active enlisted service, the applicant was discharged in order to accept a commission as an officer in the Regular Army on 13 June 1986.

2.  On 11 June 2009, he was notified by the VA that his eligibility for benefits under the Montgomery GI Bill – Active Duty was relinquished to establish his eligibility for educational benefits under the Post-9/11 GI Bill.

3.  The applicant provided a screen shot from the eBenefits online education transfer page showing the status of his request to transfer Post-9/11 GI Bill benefits as approved as of 14 September 2012.  This document lists the applicant's five dependents, his spouse and four children, and lists the following information next to each dependent:

* relation:  spouse (ineligible), name:  C.M.W., birth date:  28 January 1958, months transferred:  0, begin date:  blank
* relation:  child, name:  R.H.W., birth date:  29 June 1993, months transferred:  18, begin date: 13 September 2012
* relation:  child (ineligible), name:  H.E.W., birth date:  2 May 1996, months transferred:  0, begin date:  blank
* relation:  child, name:  D.T.W., birth date:  30 November 1994, months transferred 18, begin date:  31 July 2013
* relation:  child (ineligible), name:  M.S.W., birth date:  2 August 2000, months transferred:  0, begin date:  blank

4.  On 30 July 2013, he was honorably retired in the rank of colonel after 30 years of service.

5.  On 12 December 2014, he received a letter from the Manpower Data Center informing him of his approval to transfer his unused Post-9/11 GI Bill benefits to his immediate family.  The letter advised him that family members cannot be added to his transfer request after he separates from the service.  However, separated service members can still edit the transfer months and revoke transferred months on a transfer request that has already been submitted.  This letter reconfirms his approval of benefits transfer is for the following dependents:

* name:  R.H.W., begin date:  13 September 2012, end date:  31 December 2014, transfer months:  18
* name:  D.T.W., begin date:  31 July 2013, end date:  blank, transfer months:  18

6.  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 as a member of the Selected Reserve.

	a.  A Soldier must be currently serving on active duty or as 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 Dependent Eligibility Enrollment 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, DOD, and the VA initiated a public campaign plan that generated 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 any time, 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.

7.  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

8.  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.

9.  Title 38, U.S. Code, section 3319, prohibits service members who are no longer serving 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."

10.  Military Personnel Message Number 13-102, dated 15 April 2013, subject:  Post-9/11 GI Bill TEB 4-Year Service Obligation for Approved TEB Requests Submitted on/after 1 August 2013, was issued to emphasize that all TEB requests submitted on or after 1 August 2013 would incur a 4-year service obligation from the TEB request date regardless of years in service (except when precluded by policy or statute from committing to an additional 4 years).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show he elected TEB to two additional dependents, H.E.W. and M.S.W., under the TEB provision of the Post-9/11 GI Bill was carefully considered.

2.  A screen shot from the eBenefits online education transfer page provided by the applicant shows the status of his request to transfer Post-9/11 GI Bill benefits as approved as of 14 September 2012.  This document clearly shows the applicant transferred 18 months of his educational benefits to his oldest child, R.H.W, and the remaining 18 months of his educational benefits to his second oldest child, D.T.W..  This document also clearly shows his remaining dependents are ineligible and 0 months of educational benefits were transferred to them.

3.  There is no evidence of record to support his claim to have transferred any of his educational benefits to his youngest two children prior to his retirement from the Army.  The TEB online database was operational on 29 June 2009 and the applicant claims to have made the transfer of benefits to his children in 2009, which is 4 years prior to the applicant's retirement.  This afforded him ample time prior to his retirement on 30 September 2013, to rectify any discrepancies he perceived between his desire to transfer benefits to all of his children and the system of record which documents he transferred them to only his two oldest children.

4.  The TEB provision of the Post-9/11 GI Bill dictates that changes to the amount of months allocated to family members can be made once a member leaves military service, provided the service member allocated at least 1 month of benefits to that family member prior to separation.  If the service member allocated 0 months to the family member in question and subsequently leaves military service, he or she is not authorized to transfer unused benefits to that family member.

5.  Relief is not granted based on unawareness of the law, program rules, or procedures unless the individual left the service during the implementation phase of the program, the first 90 days.  The Army, DOD, and the VA initiated a public campaign plan that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits.

6.  The requirements of this program are set in the law and any changes to the law are not within the purview of this Board.  There is neither an error nor an injustice in his case and, as such, there is no basis for granting the applicant's 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 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)                                         AR20150000223



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ABCMR Record of Proceedings (cont)                                         AR20150000223



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