ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 April 2019

	DOCKET NUMBER:  AR20160014982


APPLICANT REQUESTS: exception to policy to distribute his remaining Post 9/11 GI Bill benefits to his dependent daughter who was not college aged at the initial distribution of benefits.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Response letter from et National Guard Bureau (NGB) to the applicant's Member of Congress

FACTS:

1.  The applicant states he would like favorable consideration to have accrued Post 9/11 benefits be added to his dependent daughter.  The benefits were given to other dependent (son) and due to unknown foresight did not add benefits to daughter.  At the time the Post 9/11 benefits were administered, he was not informed that award of a minimum amount of time had to be administered to other dependents.  The website by which this is distributed is problematic and confusing; dependents show up via the Defense Eligibility Enrollment Reporting System (DEERS), but there are no prompts or other functional links warnings or other that carry a person successfully through the process.  As a consequence of his subsequent retirement, then an attempt to leverage those benefits to his daughter, he was unable to so because he was no longer in uniform.  He argues that those benefits are still his regardless, and he should be allowed to move them accordingly.  It makes no sense or adds no value to be unable to distribute within his dependency.  Likewise, there is no advantage to be taken of the government in this regard.  At best, the policy is unclear and further complicated by a non-user friendly web site.

2.  The applicant provides a letter, dated 25 March 2016 from the NGB to his Member of Congress regarding the transfer of education benefits (TEB) to his family members under the Post-9 / 11 GI Bill program.  It reads: 

	a.  The Army National Personnel Programs, Resources and Manpower Division (ARNG-HRM) advises Title 38, Veterans' Benefits, United State Code (USC), Subsection 3319(f), Authority to transfer unused education benefits to family members, establishes the legal requirements on the transferability of unused Post-9/11 GI Bill benefits.  It 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."

	b.  According to the ARNG-HRM, on 26 April 2011, [Applicant] transferred nine months of his education benefit to one of his four dependents.  However, he did not assign benefit months to his remaining dependents prior to his retirement on 31 July 2014.  His request to add additional dependents cannot be approved based upon Title 38, USC, Subsection 3319(f).  The Department of Defense Instruction 1341.13, Post 9/11 GI Bill, further specifies, "An individual may not add family members after retirement or separation from the Uniformed Services."  The ARNG-HRM is not authorized to grant exceptions to this statutory provision.  

	c.  Applicant may submit an application to the Army Board for Correction of Military Records (ABCMR) for review. 

3.  Review of the applicant's service records shows: 

	a.  He was appointed as a commissioned officer of the Army National Guard (ARNG) on 6 June 1982. 

	b.  He served in a variety of stateside or overseas assignment, in an active and/or inactive status, and he attained the rank of lieutenant colonel.

	c.  He was transferred to the Retired Reserve on 31 July 2014.  His NGB Form 22 (Report of Separation and Record of Service) shows he completed 32 years of total service for pay.

4.  By law, directive, and regulation, changes to the amount of months allocated to dependents (under the Post 9/11 TEB) can be made at anytime, 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.  

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  In the opinion of the Board, the applicant provided insufficient evidence to show a mitigating factor as to why he didn’t make the timely election to transfer his education benefits to his family.  


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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.
	 
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 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  The law limits eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve on or after 1 August 2009:

	a.  A Soldier must be currently 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 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 Defense Eligibility Enrollment Reporting System (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).  Wards of the 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, DOD, and 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 dependents 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.  

2.  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

	c.  is or becomes retirement eligible during the period from 1 August 2009 through 1 August 2013.  A service member is considered retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service.

3.  DODI Number 1341.13 (Procedures), paragraph 3 (Transferability of Unused Educational Benefits to Family Members), subparagraph f (2) (a) 2, states an individual 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.


ABCMR Record of Proceedings (cont)	 AR20160014982


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