IN THE CASE OF: BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150004311 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 his unused educational benefits to his family members under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: a. When he retired he went online to transfer his Post-9/11 education benefits to his dependents. He intended and thought he had made each of his dependents eligible for the benefit. He now realizes that only his eldest son B___ was listed as being eligible. He son B___ took his own life on 16 August 2013. He had used 7 months and 17 days of his education benefits. There are 28 months and 13 days of benefit remaining. b. In order for his other dependents to be able to use the benefit, as he had intended, they need to be listed as eligible in the TEB system. He does not understand why his other dependents were not listed as being eligible as his oldest son was. He intended for each of them to have access to his education benefits. 3. The applicant does not provide any additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer on 5 June 1985 and ordered to active duty the same day with a reporting date of no later than 12 August 1985. He entered active duty on 19 June 1985. 2. He retired on 28 February 2013 and he was placed on the retirement list in the rank of lieutenant colonel on 1 March 2013. He completed 27 years, 8 months, and 12 days of net active service. 3. There is no evidence nor does he provide evidence that shows he transferred, or attempted to transfer, a portion of his unused education benefits to any of his dependents other than his son B__ F____, in accordance with the TEB provisions of the Post-9/11 GI Bill prior to his retirement. 4. On 7 July 2015, an advisory opinion was received from HRC, Section Chief, Finance and Incentives Team, recommending disapproval. The opinion stated: a. On 12 October 2010, the applicant requested the transfer of 36 months of his education benefits to his son B___ F____ and 0 months to spouse and other two children. His TEB was approved on 12 October 2010. All of his dependents were listed as eligible for TEB on 12 October 2010 when the applicant elected to transfer 36 months to B___ F___; however, he elected to transfer only to B__ F___. The TEB website would allow a submission to process when the number of months transferred is a total of between 1 to 36 months. The TEB website will not allow a submission to process when more than 36 months is entered in the “Trans Month” column, Therefore, since the TEB submission or 12 October 2010 processed, it is reasonable to assume the applicant only transferred months to B__ F___ and not to his other dependents. b. Because the applicant had not transferred at least one month to other dependents before retiring, he cannot make them eligible by transferring at least one month while in retired status per U.S.C. 3319(f)(1). Changes to the amount of months allocated to dependents can be made at any time, to include once a Soldier leaves 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 no action was taken by the applicant to transfer any benefit to his dependents other than B___ F___. c. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless they left the service during the implementation phase (first 90 days) of the program. The Army, Department of Defense, and Department of Veteran Affairs initiated a comprehensive public campaign plan that generated communications through military, public, and social media venues on the Post 9/11 GI Bill and subsequent TEB. The information was available to the applicant since his last day in the service was 28 February 2013 which was not within the 90 days after the program’s implementation. 5. On 24 August 2015, he responded to the advisory opinion. He stated: a. When he made his TEB to his eldest son B___, he noticed that his other dependents were listed as being eligible. There was no notification or indication on the website stating that when you retire your remaining dependents will become permanently ineligible. He assumed his eldest child would use his educational benefits first so he initially assigned all 36 months to him. Subsequently, on the same day he attempted to modify his allocation and assign an equal number of months to each of his children; however, the system would not process his request. He did not think much of it because he was led to believe that he could make changes at any time. There was no indication that at least one month of benefits needed to be assigned to each remaining child prior to retirement to prevent them from being permanently ineligible. b. He never received any information before or during his retirement process to indicate his dependents would be made ineligible when he retired. If he had received that information he would have gone back into the system to attempt to make whatever changes that were necessary to ensure that his dependents remained eligible. He never saw any of the major communications concerning the TEB program. During his final years in the military he was focused on serving his country on multiple combat deployments in remote areas and taking care of patients that needed his help. c. He never expected to lose his son nor did he expect that his other dependents would be eliminated from access to his educational benefits with no good reason. He hopes that his statements, combat deployments, and his unwavering service to the Medical Corps would be used in the decision to determined his request. 6. The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law 110-252, House of Representatives, 2642. In July of 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. General eligibility criteria are as follows: a. A Soldier must currently be on active duty or 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 benefits to eligible children. c. A Soldier may only transfer to eligible dependents. To be considered an eligible dependent the spouse or 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 unmarried (verified by DEERS); the child will lose eligibility status upon less than full-time status or graduation. Wards of the State are not eligible for the benefit. 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. The Army, the Department of Defense, and the 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. g. A Soldier must initially request to transfer benefits on the Department of Defense's TEB online database. The TEB online database was operational on 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 dependents can be made at anytime, to include once you leave 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. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant requests an exception to policy to transfer of his unused education benefits to his dependents. He contends he was unaware of the transferability requirements. 2. He acknowledges he initially transferred all 36 months of his benefits to his eldest son. He contends he attempted to change the allocation on the same day; however, there is no evidence, nor does he submit any evidence, which shows he attempted to transfer any education benefits to his other dependents prior to his separation. 3. Changes to the amount of months allocated to dependents can be made at any time, to include once a Soldier 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 4. Notwithstanding his sincerity, the DOD, VA, and the Army conducted a public campaign plan that generated major communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. While there may have been some confusion during the early stages after the implementation, the applicant retired over 3 years after the program was implemented. 5. The requirement to transfer the benefit while a member is in on active duty or in the Selected Reserve is embedded in the law and a change to this law is not within the purview of this Board. As the applicant failed to transfer the benefit while in an active status, as required by law, there is an insufficient evidentiary basis for granting his 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) AR20150004311 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004311 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1