BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20170009387 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20170009387 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. ___________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: 14 September 2017 DOCKET NUMBER: AR20170009387 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 requests correction of his records to show he elected transfer of his educational benefits to his daughter G____ under the Transfer of Education Benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: a. When he attempted to transfer his Post-9/11 GI Bill educational benefits to his daughter G____, he was informed it was impossible to transfer such benefits due to her age. She was born on 3 May 1993 and turned 24 years old on 3 May 2017. b. Although the law, Title 38, U.S. Code, section 3319, prescribes that an eligible dependent can use transferred educational benefits up to age 26, it also entitles the Secretary of the Army to prescribe eligibility. The Department of the Army has a policy wherein other benefits (including education) lapse at age 23. This unfortunately results in an incongruent case where his daughter, who is still eligible to use the benefits, cannot enjoy the fruits of his desire to help her, simply because he failed to transfer the benefits prior to the appropriate age. c. Even if this is a major mistake on his part, it was due in part to not being certain whether she would be attending school for graduate studies. He withheld transferring benefits pending her acceptance into appropriate graduate programs. Now that she fulfilled her end of the bargain, he finds himself unable to transfer benefits. He understands it is a mistake on his part, but it effectively results in an injustice to his daughter, who relied on his promise of support and help, and penalizes her for a mistake that is completely his. d. In addition, it seems to contradict the spirit of the law which clearly intended to allow children up to age 26 to enjoy the benefits under the TEB provision. He implores the Board not to penalize his daughter and allow him to fulfill his promise to help her, in that way honoring his commitment to the military and this Nation which entitles him to years of educational benefits that he would like to transfer to his child. e. There is no question he is the responsible party for the error. This whole ordeal would have been prevented had he transferred the educational benefits over a year ago when his daughter was under the age 23 and still in the Defense Eligibility Enrollment Reporting System (DEERS). However, as he reads the law, it clearly states that children are eligible to use Post-9/11 GI Bill benefits until they are 26 years old. This intrinsic contradiction between the law as written and the implementation of eligibility policy by the Secretary of the Army can create the type of confusion that led him to rely on the fact that they still had 2 years of eligibility. Indeed, his daughter is still eligible, but at this point it is an issue of the transferability of the benefits which the Army has limited to children under age 23. f. The Department of Veterans Affairs, which is the administrator and funding agency of the program, has no problem giving the benefits to his 24-year old child, but the only barrier is his ability to assign her as the rightful and fair recipient under the present Army policy. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving on active duty in the rank of major. 2. There is no evidence showing he transferred educational benefits to his daughter G____ prior to her reaching age 23 on 3 May 2016. 3. An advisory opinion was rendered by the Chief, Army Education Incentives, U.S. Army Human Resources Command, wherein he recommended disapproval of the applicant's request to transfer Post-9/11 GI Bill educational benefits to his daughter G____. The Chief of Army Education Incentives stated: a. The applicant did not provide evidence showing he successfully transferred educational benefits to his daughter G____ prior to her reaching age 23 on 3 May 2016. b. While Public Law 110-252, section 3319(f)(1), 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," the Department of Defense Instruction Number 1341.13 (Post-9/11 GI Bill), dated 31 May 2013, enclosure 3, paragraph 3b(2), and Department of the Army Post-9/11 GI Bill Policy Memorandum, dated 10 June 2009, paragraph 17c(2), further state, "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." Therefore, when a child reaches their 23rd birthday and if the transfer has not already occurred, the child is no longer eligible in DEERS for educational benefits to be transferred. If the transfer had occurred prior to the child's 23rd birthday, the child would have to use educational benefits prior to his or her 26th birthday. c. On 18 July 2017, the applicant requested transfer of 12 months of benefits to S____ (daughter), 1 month to G____ (son), and 1 month to A____ (son). His TEB request was approved on 19 July 2017 with a TEB service obligation of 17 July 2021. All dependents were listed as eligible in DEERS for TEB on 18 July 2017, with the exception of G____ because she had already reached her 23rd birthday. d. The applicant had nearly 7 years to submit a TEB request prior to his daughter G____ reaching age 23 on 3 May 2016; however, he waited until 18 July 2017 to submit a TEB request. e. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless the Soldier left the service during the implementation phase (first 90 days) of the program. The Army, Department of Defense, and Department of Veterans Affairs initiated a comprehensive public campaign plan that generated major communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of educational benefits. This information was available to the applicant for almost 7 years before his daughter G____ reached age 23. His TEB request was effective 18 July 2017, which was not within the 90-day implementation phase. 4. A copy of the advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, this law 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 90 days of qualifying Post-9/11 GI Bill service, 6 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 TEB website http://milconnect.dmdc.mil. All benefits must be transferred before the service member separates or retires. DISCUSSION: 1. The Post-9/11 GI Bill is a benefit for the Soldier as a reward for service during a time of conflict. The option to transfer educational benefits to a dependent is a retention incentive. The educational benefits transfer incentive was included in the statute for the express purpose of recruitment and retention. It is neither a reward for past service nor a transition benefit. Therefore, the incentive requires the Soldier to commit to and fulfill additional service, in most cases, from the TEB request date. 2. Although the applicant contends he is entitled to educational benefits for his military service to the Nation, the Post-9/11 GI Bill TEB provision is a retention incentive, not an entitlement. 3. His remaining contentions were carefully considered. The law requires a family member to be enrolled in DEERS and be eligible for benefits at the time of transfer to receive transferred educational benefits. Since he did not transfer educational benefits to his daughter G____ prior to her 23rd birthday on 3 May 2016, she was no longer enrolled in DEERS. In addition, his TEB request was effective 18 July 2017, well outside the 90-day implementation phase of the program. He had ample time to allot a portion of his educational benefits to his daughter G____ under the TEB provision of the Post-9/11 GI Bill if he intended to do so. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170009387 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170009387 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2