ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20160015736 APPLICANT REQUESTS: his educational benefits be transferred to his child. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self- Authored Letter * Reference Letters x 2 FACTS: 1. The applicant states he was medically discharged from the National Guard in October 2013. At the time he was assured by the administrative office at the local armory that he met all the requirements to have the benefits transferred to his son. With the educational goals that his son has, this is very important to them. He tried numerous times to reach the VA Office (at least 25) and no one was available to help. It was not until after speaking with someone at the VA Center in downtown St. Louis that the applicant was informed he should have received a notification about his education benefits being transferred. It appeared the paperwork was never completed online prior to his retirement even though he had previously been assured that they had been completed. His son graduates high school in May of 2018 and plans to attend Missouri University of Science and Technology to obtain an engineering degree. 2. The applicant provided two references letters, one from his son and one from his wife. The letters of reference show: * they are writing to request an appeal for the transfer of the applicant's benefits * the family thought the transfer took place by the time the applicant was retired in 2013; they checked on the transfer of education benefits several times while the applicant was in the Army and was assured they had done all that was necessary * after retirement and after several years of trying to get information regarding this issue, they finally received helpful information from the VA Center in 2016 * while they have saved some money for their son’s education, they planned on him being able to use the applicant’s GI benefits 3. A review of the applicant's records show: * 30 April 2001 - he enlisted in the Missouri Army National Guard (MOARNG) * 5 August 2005 to 8 December 2006 - he was mobilized in support of Operation Iraqi Freedom * 7 March 2013 - he was identified as medically disqualified due to a Non-Duty Related medical condition. He waived his right to a Non-Duty Related Physical Evaluation Board. * 22 May 2013 - Orders 142-076 stated how the applicant received retirement orders, honorably releasing him from Army National Guard, transferring him to the Retired Reserve * 27 September 2017 - Orders 270-099 amended Order 142-076, showing the applicant is entitled to early qualification for retired pay (15 year letter) 4. On 13 September 2018, Army Review Boards Agency received an Advisory Opinion from the National Guard Bureau showing: * the applicant requests transfer of his Post 9/11 G.I. benefits to his son * recommend approval of applicant's request * he was assured by the administrative office at his local armory that he met all the requirements to have his benefits transferred to his son * his DD Form 214 shows he was mobilized in support of Operation Iraqi Freedom from 12 November 2005 through 5 November 2006 * he was a solider during the initial phase of the program to disseminate the transfer of benefit information; he was not fully aware of the requirement to transfer prior to leaving the military service * based on the applicant’s status at the time of the transfer of education benefits program inception and he slow dissemination of information, it is reasonable that the applicant did not receive the necessary information prior to his medical discharge; therefore, it is the belief the applicant should be granted transfer of benefits to his son * Army National Guard Incentive Branch concurred * MOARNG did not provide input 5. 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 a member of the Selected Reserve. a. A Soldier must be 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 family members. To be considered an eligible family member the spouse or child must be enrolled in the Dependent Eligibility Enrollment Reporting System (DEERS). 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 in service the Soldier had 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 which is the first 90 days of the program. g. A Soldier must have initially requested 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 electronically to the VA for their access. The respective dependent must then submit an application for VA educational benefits, VA Form 22- 1990e, to request to use the benefits. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions and the advisory opinion were carefully considered. The applicant retired from the MOARNG on 2 May 2013. Public law provides a Soldier must be 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. One member voted to deny the application based upon the applicant’s failure to make an election prior to separation. Based upon the advisory opinion, the other Board members agreed to grant relief assuming he was not efficiently briefed on the transfer of benefits procedures. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X DENY APPLICATION 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 he made a timely application to transfer Post-9/11 GI Bill education benefits to his child and it was approved prior to his separation date. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 a member of the Selected Reserve. a. A Soldier must be 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 family members. To be considered an eligible family member the spouse or child must be enrolled in the Dependent Eligibility Enrollment Reporting System (DEERS). 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 in service the Soldier had 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 which is the first 90 days of the program. g. A Soldier must have initially requested 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 electronically to the VA for their access. The respective dependent must then submit an application for VA educational benefits, VA Form 22- 1990e, to request to use the benefits. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160015736 4 1