IN THE CASE OF: BOARD DATE: 18 November 2015 DOCKET NUMBER: AR20150004936 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 son under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill in addition to his wife, to whom he has already transferred the benefits. 2. The applicant states: * once he verified that he had enough remaining time on active duty, he changed his GI Bill to the Post-9/11 GI Bill in 2009 to enable his wife and son to use the benefits * he informed the Post-9/11 GI Bill representative by telephone how he would like to distribute the benefits – 24 months to his wife and 12 months to his son * he was told it wouldn't be a problem and it would be taken care of * his wife began using the benefits in 2010 with no difficulties * he didn't check to ensure everything was in order for his son to use the benefits when the time came since his wife encountered no difficulties * his son is now a senior in high school, soon to graduate, so he began checking into what is needed for his son to receive his portion of the benefits * had he known there was a problem with his son's benefits in advance, he would have corrected the problem while he was still serving on active duty * his son has been making his college plans based on the benefits he thought he would receive * he would hate for his son to be unable to achieve his dream because of a simple mistake 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 25 July 1990. 2. On 31 July 2013, he was honorably retired in the rank of staff sergeant after 23 years and 6 days of service. 3. There is no evidence of record and he did not provide any evidence regarding his election to transfer his Post-9/11 GI Bill benefits. 4. 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, Department of Defense (DOD), and the Department of Veterans Affairs (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. 5. 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 6. 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. 7. 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." 8. 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 to transfer is educational benefits to his son in addition to his wife under the TEB provision of the Post-9/11 GI Bill was carefully considered. 2. Documentation regarding the applicant's Post-9/11 GI Bill elections is not available for review and has not been provided by the applicant. There is no evidence of record to support his claim to have transferred any of his educational benefits to his son 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 son and wife in 2009, 4 years prior to his retirement. This afforded him ample time prior to his retirement on 31 July 2013, to rectify any discrepancies he perceived between his desire to transfer benefits to his son and the system of record which apparently documents he transferred them to only his wife. 3. 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. 4. A lack of awareness of the law, program rules, or procedures is not normally evidence of inequity or injustice 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. The requirements of this program are set in the law and any changes to the law are not within the purview of this Board. 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) AR20150004936 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004936 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1