BOARD DATE: 25 July 2017 DOCKET NUMBER: AR20160001125 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: 25 July 2017 DOCKET NUMBER: AR20160001125 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: 25 July 2017 DOCKET NUMBER: AR20160001125 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 approval of a waiver of the Post-9/11 GI Bill Transfer of Education Benefits (TEB) service obligation. 2. The applicant states her request is to reinstate benefits documented in a Department of Defense (DOD) letter, dated 20 July 2010, that approved her request to transfer her unused Post-9/11 GI Bill benefits to members of her immediate family. After receiving the 2010 approval letter and trusting the documented decision, she continued with her plans to retire in November 2010. She remained in the benefits program through August 2014 and was still allowed to distribute benefits among approved dependents. On 9 September 2014, the Department of Veterans Affairs (VA) decided not to approve a claim for educational benefits, stating the Army decided she was not eligible for the benefit and her online access to the benefits program was removed. Over the past year, she has unsuccessfully tried to resolve the issue with the VA and would appreciate consideration and reinstatement of this benefit for her children. She believes the "ability to transfer unused Post-911 GI Bill" benefits approved in July 2010 was unjustly taken away in September 2014. When she retired honorably in November 2010, she understood the TEB was approved and she had satisfied all service requirements. As of August 2014, the (formerly) approved benefits were needed for two of her children who are attending college. The government's decision to wait until September 2014 to take away the approved TEB provided her with little recourse for corrective action. 3. The applicant provides: * DOD approval letter, dated 20 July 2010 * VA denial letter, dated 9 September 2014 * VA letter, dated 6 April 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 11 October 1990. She served continuously on active duty through multiple reenlistments and she attained the rank/grade of sergeant first class/E-7. 2. She retired on 30 November 2010 and she was placed on the retired list in her retired rank/grade of sergeant first class/E-7 on 1 December 2010. She was credited with 20 years, 1 month, and 20 days of active service. 3. She provided: a. a DOD letter, dated 20 July 2010, showing her transfer request date was effective 3 November 2009 and her request was approved. Her three dependents would be eligible for benefits on 1 January 2011; b. a letter, dated 9 September 2014, wherein the VA informed her that they could not approve her claim for educational benefits because DOD determined she was not eligible for transfer of educational entitlements; and c. a second letter, dated 6 April 2015, wherein the VA informed her that the Army had rejected her participation in the TEB program on 4 September 2014. The VA had no authority to change or amend the Army's determination. 4. An advisory opinion was received from the U.S. Army Human Resources Command Chief of Army Education Incentives on 10 January 2017 in the processing of this case. a. The Chief, Army Education Incentives, recommends disapproval of the applicant's request to waive the Post-9/11 GI Bill TEB service obligation. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 of 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 6 years in an active duty or Selected Reserve status and no current negative action flag, commit to the service obligation, and transfer benefits to their dependents through the TEB website. All benefits must be transferred before the service member separates or retires. b. Administrative relief is not recommend based on the following: (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 considered an incentive, not an entitlement. The transferability incentive was included in the statute for the express purpose of recruitment and retention. It is neither a reward for 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) The Post-9/11 GI Bill benefit and the TEB incentive do not require a formal one-on-one counseling, group counseling, or a reduction in pay to make oneself eligible. A Soldier acquires eligibility for the Post-9/11 GI Bill benefit through qualified service after 10 September 2001 and elects the benefit through the VA using a VA Form 22-1990. A Soldier acquires TEB eligibility as stated above and makes dependents eligible (awards at least 1 month to the dependent) by requesting TEB via the TEB website and fulfilling the TEB service obligation. (3) The Soldier must acknowledge and click on nine statements in the TEB website before submitting the TEB request. Statements "d" and "e" pertain to the Soldier agreeing to serve the TEB service obligation and a possible overpayment if the TEB service obligation is not fulfilled. (4) The applicant had over 1 year prior to her retirement date to research the eligibility criteria for the TEB incentive. (5) The applicant could have obtained the TEB eligibility criteria through the DOD Directive-Type Memorandum 09-003, dated 22 June 2009, paragraph 3a(3)(c); the Department of the Army Post-911 GI Bill Policy Memorandum, paragraph 17a(4)(c); DOD, Department of the Army, and U.S. Army Human Resources Command websites; and various briefings at the installation level. (6) The applicant had sufficient time to submit a TEB request and research the TEB service obligation requirements before she voluntarily retired on 30 November 2010. (7) The applicant submitted a TEB request on 3 November 2009. Her servicing Career Counselor approved the TEB request on 3 November 2009 with a TEB service obligation of 3 November 2011 (viewable in the upper left-hand corner of the TEB website for the applicant to see). (8) The applicant submitted a voluntary request for retirement with a projected retirement effective date of 30 November 2010. On 16 December 2009, her voluntary retirement request was approved, retirement orders were published with a retirement effective date of 30 November 2010, and she was provided copies. At that time, the applicant had an opportunity to recognize that she would have retired before fulfilling the service obligation (3 November 2011). (9) Throughout the TEB process, the applicant had the responsibility to check the TEB website for the status of her TEB request and any TEB service obligation (viewable in the upper left-hand corner of the TEB website). She made herself ineligible for TEB when she requested retirement with an effective date of 30 November 2010, which was before the TEB obligation ending date (3 November 2011). (10) On 20 July 2010, she accessed the TEB website and printed her TEB approval form. At that time, she again would have seen the TEB obligation ending date of 3 November 2011 in the upper left-hand corner of the TEB website. (11) On 4 September 2014, this office received an inquiry from the VA Regional Processing Office, St. Louis, MO, about the applicant not fulfilling the TEB obligation. This office rejected her TEB request on 4 September 2014 because she did not fulfill the entire TEB service obligation prior to her retirement. (12) This office sympathizes with the applicant and her dependents. 5. The applicant responded to the advisory opinion on 22 February 2017. She stated: a. In 2009, the Post-9/11 GI Bill TEB process and website were confusing to use. She worked with Soldiers in the Personnel Office, who described the process and helped with using the website. During this early stage of the TEB program, the Personnel Office described the approval timeline and time requirements as depending on the specific situation, and that she should submit the request and see how long it takes to receive approval. Already in the retirement process, she extended her retirement date in a good faith effort to continue her service until the approval was received. b. In July 2010, the TEB website clearly provided access to the DOD's approval of the TEB request. As described in the DOD document, this approval enabled the immediate transfer of educational benefits starting on 20 July 2010, and did not describe the need to satisfy any additional requirements nor did it reference any external documents. She verified the authenticity of the approval letter with the Soldiers in the Personnel Office, who also correctly recommended printing the approval document for future use. After receiving the approval, she continued with her retirement, not having any reason to doubt the authenticity of the DOD approval or doubt that she had satisfied the requirements to transfer education benefits. Well after retirement and into the third quarter of 2014, she retained the same approved level of access to the TEB website, and was able to transfer educational benefits, which further confirmed the DOD's 2010 approval. c. To address other statements in the advisory opinion: while she has physical proof of the 2010 DOD approval from the TEB website, she does not remember the advisory-referenced date on the 2009/2010 version of the website. Maybe the early versions of the website did not have this information or maybe it was not as prominently displayed as in the 2017 version of the website. Also mentioned multiple times in the advisory opinion, she did not take further actions to investigate regulations because DOD approved the ability to transfer educational benefits without any additional conditions. Everything seemed okay and fit with the information provided in the DOD approval document, by the Soldiers in the Personnel Office, and on the TEB website. d. The reason for participating in this multi-year rebuttal process is to hopefully have consideration of the 2010 DOD approval and her specific situation that officially approved the transfer of educational benefits, without additional requirements or conditions. Her decision to retire was predicated on receiving this approval before retiring. While it may not have been intentional, the 2010 approval of immediate use without conditions seems deceptive if the 2014 denial is allowed to stand. Changing the approval decision after a Soldier has retired seems to be unjust. REFERENCES: 1. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 of 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 6 years on 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. All benefits must be transferred before the service member separates or retires. 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 serving on active duty or as 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 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 Defense Enrollment Eligibility 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 the date of transfer. 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. The DOD, VA, and DA initiated a public campaign plans that generated communications through military, public, and social media venues on the Post-9/11 GI Bill and subsequent transfer of education benefits. 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. h. Changes to the number of months allocated to family members can be made at any time, to include once a Soldier leaves military service, provided the Soldier allocates at least 1 month of benefits prior to separation. If the Soldier allocates 0 months and subsequently leaves military service, the Soldier is not authorized to transfer unused benefits Post-service. 2. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible individual is 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, 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. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 4. DOD Instruction Number 1341.13 (Post-9/11 GI Bill) establishes policy and assigns responsibilities for the implementation of chapter 33, Title 38, U.S. Code (also known as the Post-9/11 GI Bill). Any service member on or after 1 August 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request to transfer that entitlement under this section, may transfer that entitlement provided he or she meets one of these conditions: a. has at least 6 years of service in the Military Services (active duty or Selected Reserve), on the date of approval and agrees to serve 4 additional years in the Military Services, from the date of election. b. has at least 10 years of service in military services (active duty or Selected Reserve), on the date of approval, 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. c. is or becomes retirement eligible during the period 1 August 2009 through 31 July 2012, and agrees to serve the additional period, if any, specified in this DOD Instruction. A Service member is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed pursuant to section 12732 of U.S. Code. * for individuals eligible for retirement on 1 August 2009, no additional service is required * for individuals eligible for retirement after 1 August 2009, and before 1 August 2010, 1 year of additional service is required * for individuals eligible for retirement on or after 1 August 2010, and before 1 August 2011, 2 years of additional service is required * for individuals eligible for retirement on or after 1 August 2011, and before 1 August 2012, 3 years of additional service is required 5. Title 38, U.S. Code, section 3319 (Authority to Transfer Unused Education Benefits to Family Members), provides that individuals failing to complete the service agreement and whose eligible family members use the benefit as of the date of such failure shall be treated as overpayment of educational assistance and will, in turn, be responsible for reimbursing the government. The exceptions defined in the law include an individual who dies before completing the service agreement or has a physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the performance of duty. DISCUSSION: 1. The applicant submitted her TEB request on 3 November 2009 and it was electronically approved the same date. At the time of approval, she was not retirement eligible (she had completed 19 years and 9 months of active service). Although she was 3 months short of being eligible for retirement based on completion of 20 years active Federal service, it was determined she had a service obligation date through 3 November 2011 (2 years from the date of her submission on 3 November 2009). 2. DOD issued her an approval memorandum on 20 July 2010 indicating her transfer request was approved but did not stipulate any service obligations. However, the TEB website would have alerted her that her TEB service obligation was 3 November 2011. 3. The applicant submitted a voluntary request for retirement with a projected retirement effective date of 30 November 2010. Her request was approved on 16 December 2009 and her retirement orders were published with an effective date of retirement of 30 November 2010. Individuals eligible for retirement on or after 1 August 2010 and before 1 August 2011 incurred 2 years of additional service. 4. On the surface, the applicant appears to have suffered an injustice. However, the fact remains that the applicant did not complete her 2-year TEB service obligation and thus by law is ineligible for TEB – a retention incentive, not a benefit. She retired on 30 November 2010. Her projected TEB service obligation ending date was 3 November 2011 based on the date she electronically requested the TEB through its specific website. In this case, it appears government officials were in compliance with the law when her TEB was disapproved in 2014. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001125 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001125 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2