ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20160019789


APPLICANT REQUESTS: to have Transfer of Education Benefits (TEB) be reinstated to transfer to all his children.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Letter from Army Human Resource Command (HRC)

FACTS:

1.  The applicant states he is appealing the board under the advice of the senator of Utah.  He requests to have military education assistance reinstated for all of his children. 

2.  The applicant provided a letter from HRC to the senator on his inquiry on the applicant showing:

* the Post 9/11 GI Bill is a benefit to the service member; TEB is an incentive requiring additional service calculated from the TEB request date
* all benefits must be transferred before the service member separates or retires; public law makes no provision for waiving this requirement 
* applicant requested TEB on 3 November 2009 for one child; this request was approved on 3 November 2009 
* on 3 January 2012, the applicant transferred 12 months of benefits to another child and 8 months to his spouse; he did not transfer any benefits to any of his other eligible dependents 
* in accordance with Title 10 USC 3319(f)1, a Soldier establishes TEB eligibility for a dependent when the Soldier transfers at least one month to a dependent while on active duty status, therefore he is ineligible to transfer to his other dependents when in a retired status 
* because the applicant transferred education benefits within the first 90 days of the program’s implementation date of 1 August 2009, he may seek relief from the US Army Review Boards Agency (ARBA)

3.  A review of the applicant’s records shows:

* 1 September 1987 to 31 August 1988 – he was a ROTC Cadet
* 1 September 1988 – he commissioned in the Army National Guard (ARNG)
* 31 August 2000 – he transferred from ARNG to United States Army Reserve (USAR)
* 31 July 2013 – retired from the USAR with 22 years, and 11 months of qualifying service toward retirement 

4.  On 30 April 2019, ARBA received an advisory from HRC Incentives Program Manager showing: 

* recommend disapproval for the applicant’s request for TEB
* Title 10 USC 3020 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 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 TEB website
* all benefits must be transferred before the service member separates or retires
* recommend disapproval because the applicant did not provide evidence showing he attempted to transfer education benefits to his dependents other than spouse and two children prior to leaving military service 
* statements from the applicant show:

o 3 November 2009 he requested the transfer of 12 months to spouse and 12 months to child born on 31 December 1990, this request was approved on 3 November 2009 with a TEB service obligation
o 3 January 2012, the applicant transferred 12 months to his child born on                    12 June 1989
o 9 January 2012, the applicant revoked months from the  child born on                    31 December 1990 on 31 December 2016, since she became ineligible when she reached age 26
o 12 June 2015, the child born on 12 June 1989 became ineligible since he reached age 26

* while the applicant was on active duty, seven other dependents were listed as eligible in the Defense Enrollment Eligibility Reporting System (DEERS) for TEB, but no months were transferred to the child born on 6 April 2012, the stepchild born on 3 November 1995, the stepchild born on 16 November 1997, the child born on 27 February 2001, the child born on 8 June 1998, the child born on                      29 November 1996, and the child born on 2 August 1994
* the child born on 14 August 2015 was born after the applicant retired from service therefore is ineligible for TEB
* Because the applicant did not transfer at least one month to his other seven dependent children before retiring, he cannot make them eligible for TEB while in retired status; if the applicant allocated at least one month of benefits to the respective eligible dependents, changes to the amount of months allocated can be made at any time(to include after leaving military service)
* The TEB website shows no action was taken by the applicant to transfer any benefits to other dependents
* A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures

5.  The applicant was provided a copy of the advisory, but did not provide a response. 

6.  Public law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits.  Further, Title 10 USC 3020 public law 110-252, section 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.  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.  

7.  Title 10 USC 3319(f)1, states a Soldier establishes TEB eligibility for a dependent when the Soldier transfers at least one month to a dependent while on active duty status.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the advisory opinion.  The Board discussed the applicant’s previous TEB transactions, to include transfers and revocations of months, the conclusions of the advisory opinion and the applicant’s statement.  The Board determined, by preponderance of evidence, that the applicant was aware of the requirements for TEB and did not transfer at least one month to each of his remaining dependents prior to his retirement, when he would have been eligible to do so.

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

: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.


ADMINISTRATIVE NOTE(S):

Not Applicable



REFERENCES:

1.  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.  

2.  On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members.  The policy states 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, and on or after 1 August 2009, is eligible for the Post-9/11 GI Bill and, in pertinent part, 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 service or 20 qualifying years of Reserve service.

3.  Title 10 USC 3319(f)1, states a Soldier establishes TEB eligibility for a dependent when the Soldier transfers at least one month to a dependent while on active duty status.




ABCMR Record of Proceedings (cont)	 AR20160019789
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