IN THE CASE OF: BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220009905 APPLICANT REQUESTS: entitlement to Transfer Education Benefits (TEB) under the Post 9/11 G.I. Bill to his dependents. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * Birth Certificate, * DD Form 214 (Certificate of Release or Discharge from Active Duty), 31 October 2017 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in pertinent part, he is disabled veteran and would like to transfer his education benefits to his daughter. He contests that his information is current within the Defense Enrollment Eligibility Reporting System other than to have his deceased son removed. He is receiving additional compensation from the Department of Veterans Affairs (VA) for her and notes that at the time of his retirement from active duty, she was attending middle school. He argues that he was unaware of how education benefits applied to dependents that were not of age to attend college and was not provided with clarification from finance. He was advised to wait until she was of age to attend college before he requested TEB under the Post 9/11 G.I. Bill. Although the process has been challenging, he was able to obtain Chapter 35 benefits to cover her first year of college. 3. A review of the applicant's available personnel records reflects the following: a. On 14 October 1997, the applicant enlisted in the Regular Army. b. After several reenlistments, on 20 March 2008, the applicant reenlisted indefinitely. c. On 26 February 2015, Headquarters 101st Airborne Division (Air Assault) and Fort Campbell issued Orders Number 057-0631 releasing the applicant from active duty and placing him on the retired list, effective 1 November 2017. d. On or about 5 July 2017, the applicant initiated his pre-separation processing. During this process, the applicant received a VA Benefits briefing (20 June 2017). e. On 31 October 2017, the applicant was retired from active duty. 4. The applicant provides his daughter's birth certificate; born on 5. On 1 March 2023, the U.S. Army Human Resources Command, Chief, Education Incentives Branch, provided an advisory opinion recommending disapproval of the applicant's request noting that on 25 July 2012, the applicant elected to transfer 12 months of his education benefits to his spouse and 1 month to his stepdaughter (date of birth –). He failed to make an election to transfer any benefits to his daughter born on or his other stepchild born on. Since the applicant did not transfer at least one month to the other dependents before his discharge from the U.S. Army, the law does not permit him to perform this action while in a discharged status. 6. On 10 March 2023, the applicant was provided with a copy of the advisory opinion and afforded 15 days to provide comments. As of 2 May 2023, the applicant had not responded. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board reviewed and agreed with the advisory official’s finding that on 25 July 2012, the applicant elected to transfer 12 months of his education benefits to his spouse and 1 month to his stepdaughter (date of birth –). He failed to make an election to transfer any benefits to his daughter born on or his other stepchild born on. Since he did not transfer at least one month to the other dependents before his discharge from the U.S. Army, the law does not permit him to perform this action while in a discharged status. 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Public Law 110-252 section 3319 (Authority to Transfer Unused Education Benefits to Family Members) states that an individual transferring an entitlement to educational assistance under this section shall designate the dependent or dependents to whom such entitlement is being transferred, designate the number of months of such entitlement to be transferred to each such dependent and specify the period for which the transfer shall be effective for each dependent. An individual approved to transfer his or her 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. 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 one month of Post 9/11 G.I. Bill education benefits to the respective dependent prior to separation or retirement. 3. On 10 July 2009, the Army released the Post 9/11 G.I. Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. a. Transferability of Unused Benefits to Dependents. For the purposes of transferability, Armed Forces include all active duty service and all Selected Reserve service regardless of branch of service or component Soldiers whose request to transfer benefits is approved will incur an additional service obligation in accordance with the below policy. Soldiers are expected to serve the additional service obligation. b. Eligibility. (1) Any Soldier of the Armed Forces who fulfills Post 9/11 G.I. Bill eligibility requirements and who, at the time of the approval of the Soldier's request to transfer entitlement to educational assistance does not have an adverse action flag, is eligible for the Post 9/11 G.I. Bill, and (2) Has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years from the date of request, regardless of the number of months transferred, or (3) Has at least 10 years of service in the Armed Forces on the date of election c. Procedures. All requests and transactions will be completed through the Transferability of Education Benefits Web application 4. Title 38, USC, Section 3319 (Authority to Transfer Unused Education Benefits to Family Members) provides that in the case of a dependent to whom entitlement to educational assistance is transferred under this section who dies before using all of such entitlement, the individual who transferred the entitlement to the dependent may transfer any remaining entitlement to a different eligible dependent, notwithstanding whether the individual is serving as a member of the Armed Forces when such transfer is executed. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009905 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1