IN THE CASE OF: BOARD DATE: 2 July 2020 DOCKET NUMBER: AR20200002798 APPLICANT REQUESTS: to transfer Post 9/11 GI Bill education benefits to his dependent. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 9 January 2019 * Birth Certificate, dated 10 May 2019 * milConnect, dated 10 May 2019 * Self-authored memo, dated 31 December 2019 FACTS: 1. The applicant requests an exception to policy to transfer education benefits to his dependent. The applicant served 20 years and 3 months on active duty. He requested a transfer of education benefits on 29 January 2013 and incurred a 4-year service obligation. He fulfilled the obligation on 22 January 2017. His child was conceived on 10 September 2018, while he was on active duty. He did not request, but was medically retired on 10 January 2019, 4 months prior to the birth of his child. He is not permitted to transfer his GI Bill to his child because she was born 4 months after he was forced to retire prematurely due to medical reasons. He can transfer his benefits to his spouse, who he has been married to since 1998. She unselfishly followed him to every permanent duty assignment over the last 21 years. She has a rare genetic medical condition that for years did not allow them to have children. The applicant and his spouse went to medical extremes while he was in the military service to grow their family. Seven rounds of in-vitro fertilization (IVF) and Prolonged Grief Disorder (PGD) at Walter Reed Medical center and Balbo Naval Medical center over a 10-year period did not result in a viable embryo. On 10 September 2018, without medical intervention, his child was conceived naturally. The Army's Physical Evaluation Board found him unfit to continue with military service on October 2018. His medical retirement was 10 January 2019. The retirement date was prior to the scheduled birth of his child, who would otherwise been eligible for benefits. 2. A review of the applicant’s official record shows: a. He enlisted on 14 April 1997 in the Army Reserve Delayed Entry Program for a period of 8 years and 00 weeks in the pay grade of Private (PVT)/E-1. He returned to fulfill his service obligation in the Regular Army on 24 September 1997 for a period of 4 years and 00 weeks and served in various positions. b. His enlistment qualified him for the Montgomery GI Act of 1984. c. On 2 October 2018, a Physical Evaluation Board was convened finding the applicant physically unfit for continued military service. The board recommended that he be temporarily medically retired for Post-Traumatic Stress Disorder. d. On 11 October 2018 (Order# 290-0157) he was released from active duty because of a physical disability and placed on the retired list effective 9 January 2019 in the rank of Master Sergeant (MSG)/E-8. 3. The applicant provides: a. DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 9 September 2019, reflective of the applicant being released from active duty at the rank of MSG and placed on the retired list. b. A birth certificate that shows the child was born on 10 May 2019. c. milConnect, dated 10 May 2019, showing the child is not eligible for the Post 9/11 GI Bill. 4. In the processing of this case, an advisory opinion, dated 28 May 2020, was received from the Chief, Education Incentives Branch. The advisory official recommended disapproval of the applicant's request to transfer Post 9/11 GI Bill education benefits. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Further Public Law (PL) 110-252 USC 3020, 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, have at least six years in Active Duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to the dependents through the Transfer of Education Benefits (TEB) website, http://milconnect.dmdc.mil. All benefits must be transferred before the Service Member separates or retires. Recommendation is based on: a. On 23 January 2013, the applicant requested the transfer of 36 months to his spouse. On 22 January 2017, he fulfilled his 4-year TEB service obligation. The applicant was retired due to a medical disability on 9 January 2019. b. While the applicant was on Active Duty, only one dependent, his spouse, was listed as eligible in the Defense Enrollment Eligibility Reporting System (DEERS) for TEB. Following retirement, the applicant had another dependent listed in DEERS, his daughter born 4 months later. c. Reference 38 USC 3319(c) states eligible dependents are the Service Member’s spouse and/or children, and the Department of Defense Instruction (DoDI) 1341.13, May 13, 2013, Enclosure 3, para 3b further clarifies the dependent must be enrolled in DEERS to be eligible to receive benefits. Also, 38 USC 3319(f)(1) states the Service Member must be a member of the armed forces when the transfer is executed, and DoDI 1341.13, May 13, 2013, Enclosure 3, para 3f further clarifies by stating the Service Member must be in Active Duty or Selected Reserve status. d. Regretfully the applicant cannot transfer benefits to his daughter because she was not yet born so not enrolled in DEERS during the timeframe for the transfer. The Education Incentives Branch sympathizes with the applicant and his dependents; however, PL 110-252 and subsequent policy do not allow exceptions for this case. e. Although the Post 9/11 GI Bill TEB is unavailable to his daughter, the applicant’s military service may make his daughter eligible for other types of assistance. The Incentives Branch provided a document containing numerous agencies that may assist. 5. The applicant was provided with a copy of the advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 6. See all regulatory guidance at REFERENCES below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and policy and Public Law related to transfer of education benefits. The Board considered the applicant’s statement, his record of service, the transfer of education benefits to his spouse, the date of his retirement and the date his daughter was born. The Board considered the review and conclusions of the Army Human Resources Command advising official and agreed that, regrettably, the applicant’s unborn daughter was not an eligible dependent at the date of his retirement and that his education benefits are not available to her. Based on a preponderance of evidence, the Board determined that the unavailability of Post 9/11 GI Bill TEB for the applicant’s daughter was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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. REFERENCES: 1. Public Law 110-252 USC 3020. Authority to transfer unused education benefits to family members for career service members states an eligible Individual is any member of the Armed Forces who, while serving on active duty or as a member of the Selected Reserve at the time of the approval by the Secretary concerned of the member’s request to transfer entitlement to basic educational assistance under this section, has completed six years of service in the Armed Forces and enters into an agreement to serve at least four more years as a member of the Armed Forces. 2. DODI 1341.13 (Post 9-11 G.I. Bill) states that an individual transferring entitlement may modify or revoke at any time the transfer of any unused portion of the entitlement so transferred. An individual may add new family members, modify the number of months of the transferred entitlement for existing family members, or revoke transfer of entitlement while serving in the Uniformed Services, however they may not add family members after retirement or separation from the Military Services, but may modify the number of months of the transferred entitlement or revoke transfer of entitlement after retirement or separation for those family members who have received transferred benefits prior to separation or retirement. A family member must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for benefits, at the time of transfer to receive transferred educational benefits. a. Transferability of Unused Benefits to Dependents. For the purposes of transferability, Armed Forces include all active duty service and all Selected Reserve service regardless of branch of service or component. Soldiers whose request to transfer benefits is approved will incur an additional service obligation in accordance with the below policy. Soldiers are expected to serve the additional service obligation. b. Eligibility (1) Any member of the Armed Forces (active duty or Selected Reserve, officer or enlisted) on or after August 1, 2009, who is eligible for the Post-9/11 GI Bill, and (2) 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. (3) 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 //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002798 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1