IN THE CASE OF: BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150012233 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150012233 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. IN THE CASE OF: BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150012233 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 his educational benefits to his dependents under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: a. In 2009, he transferred 18 months of educational benefits to his oldest daughter who was in her sophomore year of college at the time and only had 18 months left. At the same time, he also transferred 18 months of educational benefits to his youngest daughter. He is unsure of why or how it is not in the system. b. He recently retired and would have ensured that his youngest daughter would have had the required minimum amount of time had he not already given both daughters an equal amount of the approved 36 months. This is not an attempt to point fingers or make any accusations, but rather move forward and resolve this issue so his youngest daughter can move forward with her educational goals. c. He transferred his Post-9/11 GI Bill benefits to both daughters in 2009; he transferred 18 months to each of them. His oldest daughter graduated in 2011. His youngest daughter registered, but he received a denial letter stating she was not eligible. The system shows she had 0 months authorized. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant retired on 31 May 2013 in the rank of sergeant major. 2. In the processing of this case, an advisory opinion was obtained from the Chief, Finance and Incentives Branch, U.S. Army Human Resources Command, dated 31 March 2016. The advisory official recommended disapproval of the applicant's request. The opinion stated: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, this law limits 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 on or after 1 August 2009. b. On 30 June 2009, he requested the transfer of 24 months of educational benefits to his oldest daughter and 0 months to his spouse and younger daughter. His TEB request was approved on 30 June 2009 with a TEB service obligation of 1 August 2009. All of his dependents were listed as eligible in the Defense Enrollment Eligibility Reporting System for TEB on 30 June 2009. c. The applicant had 4 years to review, update, or modify his TEB to other dependents before his retirement effective 31 May 2013. d. Because he hadn't transferred at least 1 month of educational benefits to the other dependents before retiring, he cannot make them eligible for TEB while in a retired status per Title 10, U.S. Code, section 3319(f)(f). Changes to the amount of months allocated to dependents can be made at any time, to include once you leave military service, provided the Soldier allocates at least 1 month of benefits to the respective dependent prior to separation. If the Soldier fails to transfer at least 1 month to a dependent, the Soldier may not transfer to that dependent after leaving military service. The TEB website shows no action was taken by the applicant to transfer any benefits to his dependents other than his oldest daughter. e. 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 Department of Veterans Affairs initiated a comprehensive 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 education benefits. This information was available to the applicant for 4 years until his retirement on 31 May 2012. His TEB request was effective 30 June 2009, which was within the 90-day implementation phase. f. The advisory official recommends denial of administrative relief because the applicant did not provide evidence showing he attempted to transfer educational benefits to his dependents other than his oldest daughter prior to leaving military service. 3. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible individual is any member of the Armed Forces on or after 1 August 2009 who, at the time of 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 c. is or becomes retirement eligible during the period 1 August 2009 through 1 August 2013. A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service. 2. 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, document accordingly, and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 3. DOD, the Army, and the Department of Veterans Affairs 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 education benefits to dependents. 4. Title 10, U.S. Code, section 3319(f)(1), 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. DISCUSSION: 1. Although the applicant contends he transferred 18 months of educational benefits to his two daughters in 2009, the evidence shows he requested the transfer of 24 months to his oldest daughter and 0 months to his spouse and younger daughter in 2009. 2. The evidence confirms: a. His TEB request was approved on 30 June 2009 with a TEB service obligation of 1 August 2009. b. He had 4 years to modify his TEB to other dependents before his retirement effective 31 May 2013. c. The TEB website shows no action was taken by the applicant to transfer any benefits to his dependents other than his oldest daughter. 3. By law, since he didn't transfer at least 1 month to his other dependents before retiring, he cannot make them eligible for TEB while in a retired status. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012233 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012233 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2