IN THE CASE OF:  

		BOARD DATE:  28 May 2015	  

		DOCKET NUMBER:  AR20150005769 


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 an exception to policy to transfer education benefits under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill to his daughter.

2.  The applicant states he was instructed at the time of enrollment that he could always transfer remaining months to his daughter as long as she was enrolled.  He was not informed that if he retired he could not transfer the months.  If he had been informed he would have transferred the months before he retired.

3.  The applicant provides:

* a screen approval, dated 8 August 2009 
* a letter, dated 6 November 2014, from the Department of Defense (DOD), Manpower Data Center (MDC), Seaside, CA
* a letter, dated 7 January 2015, from the National Guard Bureau (NGB) to the applicant's Congressional representative

CONSIDERATION OF EVIDENCE:

1.  He previously completed 2 years, 5 months, and 27 days of service in the Army National Guard in an enlisted status.

2.  On 8 June 1989, he was appointed a warrant officer one in the Arkansas Army National Guard (ARARNG).

3.  On 7 January 2007, he was notified he had completed the required years of service for eligibility for retired pay at age 60.

4.  The transfer request screen, dated 3 August 2009, shows the status of his TEB request as approved.  He lists his daughter for 0 months and his son for 
36 months.

5.  On 16 April 2012, he was discharged from the ARARNG and transferred to the Retired Reserve.  He completed 25 years of qualifying service.

6.  A letter, dated 6 November 2014, from the DOD Manpower Data Center, congratulated him on having been approved by his Service to transfer his unused Post 9/11 GI Bill Benefits to members of his immediately family.  The letter showed the DOD MDC reflects that his approval for his son - transfer 36 months. His daughter was not listed.  The following information was shown

* Transfer Request Date:  3 August 2009
* Transfer Status:  Request Approved
* Transfer Status Date:  3 August 2009
* Obligation End Date:  3 August 2009

7.  The applicant provided a letter, dated 7 January 2015, from the NGB to his Congressional representative.  NGB stated the applicant's initial request on 
3 August 2009 showed he originally transferred all 36 months of benefit to his son on the DOD TEB online database.  He did not transfer any benefits to his daughter before his retirement from the ARARNG on 16 April 2012.  Since he is no longer in the ARARNG, he is not eligible to transfer benefits to additional dependents.  NGB stated they did not have the authority to grant an exception. 

8.  An email, dated 24 April 2015, was received that was from the Office of the Secretary of Defense (OSD), Office of the Under Secretary of Defense for Personnel and Readiness to the Deputy Assistant Secretary of the Army (Review Boards).  According to the email, the Office of General Counsel opined that it is law … can only transfer while on active duty and transfer is only effected if something (e.g. 1 month or more) is submitted by the individual.  However, OSD found misunderstanding was common and they placed a flag in the system to ensure members understood they had to transfer at least 1 month before leaving the Service.  This was not in place at the time the applicant elected transferability.

9.  The email was provided to the applicant for comment or rebuttal.  The applicant stated.  He contacted the helpline when he completed the form to ensure that it was completed correctly.  When he spoke with the person who assisted him in completing the form he explained that he had 32 months of benefits that he wanted to set aside for his son and that he wanted to make any unused portion available to his daughter.  He was told that in order for his daughter to be eligible for benefits, he simply needed to include her name on the list of dependents.  He added her name to the list, but was not told that he was required to put a value of one or more months in the corresponding box prior to his departure from the ARARNG.  It was clearly his intent to make all earned benefits available to both of his children

10.  DOD Directive-Type Memorandum (DTM) 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 a member 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, is eligible for the Post-9/11 GI Bill.  For Soldiers eligible for retirement on or before 1 August 2009 there was no additional service required. 

	 b.  An individual transferring an entitlement to educational assistance under this section shall:

* designate the dependent or dependents to whom such entitlement is
			being transferred
* designate the number of months of such entitlement to be transferred
			to each dependent

	 c.  An individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement to the individual's family member only while serving as a member of the Armed Forces.

	 d.  An individual may add new dependents, modify the number of months of the transferred entitlement for existing dependents, or revoke transfer of entitlement while serving in the Armed Forces.

	 e.  An individual may add new dependents only while serving in the Armed Forces.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fully eligible to transfer his education benefits under the TEB prior to retirement.  However, he transferred 36 months of benefits to his son and 0 months to his daughter.  He contends he was unaware of the requirement to transfer at least 1 month to his daughter prior to leaving active duty.  The program was implemented in July 2009.  The applicant submitted his request for TEB on 3 August 2009.

2.  According to DTM 09-003, dated 22 June 2009, an individual had to designate at least one month to each dependent he or she wished to transfer education benefits to.  This could only be done while the member was on active duty.  Modification of the number of months or adding additional dependents could only be done while the member was still serving in the Armed Forces.

3.  Nevertheless, during the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  This confusion was exacerbated by heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave within 60 to 90 days of the program's implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  OSD found misunderstanding was common and they placed a flag in the system to ensure members understood they had to transfer at least 1 month before leaving the Service.  This was not in place at the time the applicant elected transferability.

5.  His transfer request clearly shows his intent to transfer benefits to both his son and his daughter.  It is reasonable to presume that had the applicant been aware of the procedure and requirement to transfer at least 1 month of his benefits to each of his dependents while in an active status he would have done so.  Therefore, as a matter of equity, his records should be corrected to show he transferred at least 1 month of his education benefit to his daughter and that he did so in a timely manner prior to his effective date of retirement.

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 the applicant filed his application and the Army approved his request to transfer at least 1 month his Post 9/11 GI Bill benefits to his daughter prior to his retirement, 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)                                         AR20150005769



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ABCMR Record of Proceedings (cont)                                         AR20150005769



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