IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011457 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 IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011457 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. IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011457 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, in effect, an exception to policy to transfer educational benefits to his family member under the transfer of educational benefits (TEB) provision of the Post-9/11 GI Bill. 2. The applicant states: * the transfer of educational benefits to his son is nowhere listed in his records; he was transferred to the Retired Reserve in August 2014 * he did not know that he was short 4 months for the date of transfer of benefits; if he had known, he would have completed the requirements * he did not find out about the error until January 2015; they are now revoking the benefit and they want repayment; he cannot afford repayment * he feels that this error was not his and repaying the monies would cause a financial hardship 3. The applicant provides: * Statement from his son * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Honorable Discharge Certificate * NGB Form 23B (ARNG Current Annual Statement) CONSIDERATION OF EVIDENCE: 1. Having had prior service in the U.S. Air Force and the Regular Army, the applicant enlisted in the Wisconsin Army National Guard (WIARNG) on 11 May 2004. 2. He served in a variety of assignments, including periods of active duty mobilizations, and he attained the rank/grade of staff sergeant (SSG)/E-6. 3. He was honorably separated from the ARNG and transferred to the Retired Reserve on 31 August 2014. He completed 20 qualifying years of service toward non-regular retirement. 4. On 30 September 2014, the WIARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 5. He provides a statement from his son wherein he states: a. He feels the decision to not waive the money paid out is wrong. His father has over 20 years of service with three tours and he is not going to use any of his GI Bill benefits. When his father retired, there was nothing in his papers saying he was short 4 months for the obligated 4 years. He asked about it and he was told everything was good. His family feels this was a mistake on both parties. The Department of Defense (DOD) should have said something or explained it more to the veteran. His father thought since he had in over 10 years when he transferred the benefit that when he retired it would be OK. b. Nobody told him any different. Repaying this puts a hardship on the family. His father is a veteran and that has to count for something. He is not asking for the GI Bill back. He is only asking to waive the amount owed. He is working on paying for the rest of his schooling, which is so unfortunate. He feels this is so unfair to repay the amount owed for it is not his fault. His father did not know he was short until January 2015. If he had known, he would have stayed in. He did sign the transfer 4 years ago so he is off 4 months this should have been in his records. This could happen to anybody. c. He read on the Post 9/11 page on Facebook that it is up to the DOD to inform veterans of their obligations. It is not the veteran affairs. He feels this is just a way to get money back from the veterans that serve this great country. Something should have been said. This is so unfair. Waiving the amount owed and not paying any more saves the DOD lots of money. He really feels the amount should be waived. His parents are reaching out to Congress in this matter. This should not happen to veterans and their families. 6. The Board requested and the NGB provided an advisory opinion in the processing of this case. An NGB official recommended disapproval of termination of recoupment of the transfer of education benefits due to non-fulfillment of his service obligation. He stated: a. The applicant states he was unaware at the time of his voluntary retirement he was less 4 months from fulfilling service obligation required to retain his transfer of education benefits. He feels he should not be penalized because he was not informed until after his son's benefits were revoked and recoupment was initiated. b. The applicant completed the required Transfer of Education Benefit (TEB) process on the VA website on 20 December 2010. At the time of commitment, he met the minimum time in service requirement to be eligible for the TEB program. His request for transfer of benefits was approved; subsequently, he incurred a service obligation and TEB obligation end date of 20 December 2014. c. A Soldier should not be granted relief based on the unawareness of the law, program rules, or procedure unless they left the service during the implementation phase (first 90 days) of the program. The Army, DOD, and the VA initiated a massive 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 education benefits. The applicant was in the ARNG beyond the implementation phase; therefore, he had access to information regarding the requirement to meet the service obligation. d. According to the DA Form 4187 (Personnel Action), dated 4 May 2014, the applicant requested a voluntary retirement effective 31 August 2014, which was prior to his expiration of term of service (ETS) date of 6 January 2016. According to the pre-separation counseling on DA form 4856 (developmental Counseling Statement), dated 31 May 2014, he was informed and agreed in part Ill that he may face recoupment of federal benefits, including the GI Bill, if he elected to retire prior to his ETS date. e. Eligible individuals that have at least 10 years of service in the Military Services (active duty or Selected Reserve), NOAA Corps, or PHS on the date of approval, are precluded by either standard policy (Service or DOD) or statute from committing to 4 additional years, and agree to serve for the maximum amount of time allowed by such policy or statute (DODI 1341.13, May 31, 2013). In lieu of completion of the required service time the Soldier voluntarily retired prior to his ETS date and subsequently is subject to recoupment of benefits already received. Recommend denial of the Soldiers request for relief. The WIARNG concurs with the recommendation. 7. The applicant was provided with a copy of this advisory opinion to allow him an opportunity to submit a rebuttal. He did not respond. 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. The DOD, VA, and Army 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 amount 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 his or her separation. If the Soldier allocates 0 months and subsequently leaves military service, he or she is not authorized to transfer unused benefits post service. 2. On 22 June 2009, the 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. There is a provision on the milConnect DoD TEB Web application that shows once a transfer request is submitted it continuously shows the status "Submitted" until the transfer is approved or rejected. Once a request is approved, the status will be updated to "Request Approved" and the status date will be set to the date the Service Representative approved the request. An approval form also become available once a TEB request is approved. There is an option to print the approval form so a Soldier can maintain a copy of the approval for his or her personal records. DISCUSSION: 1. The applicant served in the ARNG from August 2004 to August 2014. He completed the required TEB application on 20 December 2010. At the time of commitment, he met the minimum time in service requirement to be eligible for the TEB program. His request for transfer of benefits was approved and he subsequently incurred a service obligation and TEB obligation end date of 20 December 2014. 2. He submitted a DA Form 4187 on 4 May 2014 requesting voluntary retirement effective 31 August 2014. This was prior to the end of his service obligation (20 December 2014). There is evidence in the applicant's records that confirm he was counseled and he was aware of the implications of requesting retirement prior to completing his service obligations. 3. The Army, DOD, and VA conducted public campaigns that generated communications through military, public, and social media venues. The information was published well in advance with emphasis on the criteria. A Soldier must meet various criteria to qualify for transfer of benefits to an eligible family member; most importantly, the Soldier must be on active duty or in the Selected Reserve at the time of transfer. 4. The requirements for this program are embedded in the law and a change to the law is not within the purview of this Board. There is neither evidence of an error nor an injustice in the applicant's case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011457 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011457 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2