BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20150018122 BOARD VOTE: ____x_____ __x_____ ___x_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20150018122 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 deceased former service member reallocated the remaining months of unused educational benefits to his second child M____ L. G____ prior to 25 January 2015 under the Transfer of Education Benefits provision of the Post-9/11 GI Bill. _____________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. BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20150018122 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, the widow of a deceased former service member (FSM), requests, in effect, an exception to policy to reallocate the FSM's 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. When her husband designated his educational benefits to his beneficiaries/dependents under the Post-9/11 GI Bill, it was his understanding that any unused benefits could be transferred from one dependent to another. Her husband designated each of their three daughters as eligible beneficiaries/ dependents. He transferred 33 months of educational benefits to their eldest daughter, 1 month each to the other two daughters, and 1 month to her. b. The eldest daughter graduated from the University of the Arts in Philadelphia in May 2015. She will not be needing any additional educational benefits. She has 11 months and 4 days of remaining benefits. Their second daughter, M____ L. G____, started her junior year of undergraduate studies last month. c. Her husband passed away suddenly in January 2015. It was his desire that all remaining/unused educational benefits be transferred to the second daughter currently enrolled in college. He believed this could be done even in his absence. d. If her late husband were alive today, he would simply transfer those benefits to her. However, his unexpected death will not allow this to happen. When he passed away, their eldest daughter was just 4 months away from graduation and they were just waiting for her to graduate to transfer the unused benefits to her sister. This would have also included a transfer of the remaining benefits from her and the youngest daughter. e. The Army Review Boards Agency is their last avenue of relief. All others have been exhausted. They contacted the Department of Veterans Affairs, the U.S. Southern Command Inspector General, The Judge Advocate General, and the Inspector General hotline. Additionally, they contacted the Washington Office of Communication and Case Management, the Client Service Center, the Office of the Under Secretary for Veterans Benefits Administration, the Compensation and Pension Office, the Defense Manpower Data Center Support Office, the Service Project Office, and the U.S. Army Human Resources Command (HRC) Education and Incentives Branch. f. The only way to grant his wish and prevent this injustice is to allow a transfer/reallocation of all unused benefits to their second daughter, as explained above. 3. The applicant provides: * Post-9/11 GI Bill approval (screenshot) * Post-9/11 GI Bill eligibility percentage * Post-9/11 GI Bill certificate of eligibility * Post-9/11 GI Bill denial of reallocation of benefits * Notice of Disagreement * State of Florida Marriage Record * State of Florida Certification of Death CONSIDERATION OF EVIDENCE: 1. The FSM retired in the rank of lieutenant colonel on 31 January 2009 and he was placed on the Retired List effective 1 February 2009. 2. The FSM was voluntarily recalled to active duty from a retired status with a reporting date of 29 March 2009. 3. On 9 September 2009, the FSM's request to transfer educational benefits was approved and he transferred his educational benefits to four of his eligible dependents. His records show he transferred months of benefits as follows: * M____ G. G____, stepchild, 33 months * M____ L. G____, stepchild, 1 month * M____ G. L____, spouse, 1 month * M____ L. L____, child, 1 month 4. On 31 August 2014, he was released from active duty as a retiree recall. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period shows he completed 5 years, 5 months, and 2 days of net active service. 5. A State of Florida Bureau of Vital Statistics Certification of Death shows the FSM died on 25 January 2015. 6. The applicant provided the following documents in support of her request: a. Post-9/11 GI Bill screenshot approval that shows the FSM's eligible dependents and the months allocated to each dependent as stated above, b. Post-9/11 GI Bill eligibility percentage that shows the FSM was entitled to 100 percent of the benefits payable under the program, c. Post-9/11 GI Bill denial letter that states there is no mechanism in the law that allows for reallocation of entitlements after the death of a veteran, and d. Notice of Disagreement requesting to transfer all remaining educational benefits to the second daughter. 7. In the processing of this case, an advisory opinion was obtained from the Chief, Army Education Incentives Branch, HRC, Fort Knox, KY. a. The Army Education Incentives Branch Chief recommend neither approval nor disapproval of the applicant's request to reallocate educational benefits to dependents after the death of the FSM. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 of Public Law 110-252 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 6 years of active duty or Selected Reserve service, have no current unfavorable action flag, commit to the additional service obligation, and transfer benefits to the dependents through the TEB website at http://milconnect.dmdc.mil. All benefits must be transferred before the service member separates or retires. Below details reflect the actions taken by the FSM prior to his death. (1) On 9 September 2009, the FSM's request to transfer educational benefits was approved with a TEB service obligation date of 14 September 2009. (2) The FSM had over 5 years to review, update, or modify his transfer of educational benefits to his dependents prior to his death on 25 January 2015. b. Changes to the number of months allocated to dependents can be made at any time, to include once a Soldier leaves military service, provided the Soldier allocates at least 1 month of benefits to the respective dependent prior to separation. Benefits cannot be transferred or reallocated after the death of a Soldier. 9. On 14 November 2016, the applicant was provided a copy of the HRC advisory opinion for information and the opportunity to submit comments or a rebuttal. The applicant responded and stated: a. The problems in this case are the unintended and unfair consequences of not allowing a service member's dependents to transfer among themselves the unused educational benefits of the Post-9/11 GI Bill after the sudden accidental death of the service member. b. Her late husband properly allocated such benefits to her, to his two stepchildren, and to their child. c. Eight months after her husband's death, his youngest stepchild started her junior year at Nova Southeastern University. Her late husband certainly would have transferred the remaining/unused educational benefits from his eldest stepchild to his younger child if his tragic and totally unexpected death had not happen. Furthermore, he would have also transferred the unused 1 month of benefits originally transferred to his child, currently in fourth grade, and the unused 1 month of benefits originally transferred to her. d. Her late husband fully complied with the rules and requirements referenced in section 2a of the HRC memorandum/advisory opinion. The reason he did not modify his transfer of educational benefits under the TEB was that he understood he had plenty of time to do so once his eldest stepchild completed her education. Tragically, he met his sudden accidental death 4 months before she graduated. e. If this honorable Board does not allow the transfer of the unused/remaining benefits to the dependent who needs the benefits to complete her studies, the result would not only be harmful to one of her late husband's dependents, but also contrary to what her late husband would certainly have done had he not passed away unexpectedly. The benefits were earned by her late husband. The only equitable action is to allow his dependents who are entitled to the unused benefits to transfer the benefits to his dependent who needs it now. REFERENCES: Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members. This law amended Title 10, U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members. a. An eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, has completed at least: (1) 6 years of service in the Armed Forces and enters into an agreement to serve at least 4 more years as a member of the Armed Forces; or (2) the years of service as determined in Army regulations and established by the Secretary of the Army. b. An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement, as follows: (1) to the individual's spouse; (2) to one or more of the individual's children; or (3) to a combination of the individuals identified above. c. Provided the service member allocates at least 1 month of benefits to an eligible family member prior to separation, changes to the amount of months allocated to eligible family members can be made at any time, to include after leaving military service. DISCUSSION: 1. The FSM was fully eligible to transfer his educational benefits under the TEB provision of the Post-9/11 GI Bill prior to being released from active duty as a retiree recall and he did so. The evidence of record shows he transferred and allocated at least 1 month of educational benefits to four eligible dependents. The advisory opinion noted the FSM had over 5 years to review, update, or modify his transfer of educational benefits to his dependents prior to his death on 25 January 2015 and prior to the eldest dependent's graduation. 2. There is no mechanism in the law that allows for reallocation of educational benefits after the death of a service member. 3. The available evidence strongly suggests the FSM reserved the decision to reallocate his remaining educational benefits until his eldest daughter completed her education. The fact that he designated at least 1 month of his unused educational benefits to each of his dependents clearly indicates his intent to redistribute his unused educational benefits on an as needed basis. 4. The FSM's surviving spouse attests to the FSM's desire to reallocate the remaining months of unused educational benefits to his second child M____ L. G____. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018122 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018122 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2