BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150014794 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: 21 February 2017 DOCKET NUMBER: AR20150014794 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: 21 February 2017 DOCKET NUMBER: AR20150014794 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, correction of his military records to show that he fulfilled his Post 9/11 GI Bill service obligation for transfer of education benefits (TEB) to his dependents. 2. The applicant states: a. He received an email from the U. S. Army Human Resources Command (USAHRC) on 6 August 2015. The Muskogee Veterans Affairs (VA) Regional Office sent an email to USAHRC Education Incentives, concerning his Post 9/11 GI Bill transfer and the associated service obligation. The email stated that when he elected to transfer his Post 9/11 GI Bill benefits to his eligible dependents, he was assigned a service obligation (date) of 16 June 2016; however, he retired from the Army on 28 February 2016, which was prior to fulfilling that entire obligation. b. Since he did not fulfill the service obligation, his Post 9/11 GI Bill transfer request was rejected. His dependents are not eligible to use his Post 9/11 GI Bill benefits and may be subject to recoupment by the VA if benefits have already been paid. The Post 9/11 GI Bill are still his to use; however, his dependents are not eligible to use benefits since the service obligation was not fulfilled. c. He believes he had already received retirement orders when he made the request to transfer his Post 9/11 GI Bill to his dependents. The reason he waited so long was due to advice given to him by his unit leadership. The advice given was that he needed to transfer the benefit prior to retiring or he would not be able to do so. So during or before completing the clearing process leading up to retirement, he requested the transfer. He believed that he had to render a copy of his orders to the individual handling the transfer procedure. Had he been informed of a service obligation he would have proudly done what was necessary to meet that obligation. According to the email from Human Resource Command (HRC), it was only a few months. Since his retirement, his daughter and son have both used his benefits for education purposes. They have never received anything in reference to eligibility. Each time has been successful using the Veterans On-line Application (VONAP) along with support from a VA representative with no problems. d. However, now after nearly 5 years, he received a notification stating ineligibility and recoupment. He believes this is unjust, because he was not given the opportunity to avoid something like this happening and he cannot go back and serve to make-up the difference. He cannot stress enough, how severe of a monetary loss and financial hardship this would be for him and his family. 3. The applicant provides a letter in response to the USAHRC advisory. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant is a retired Regular Army (RA) staff sergeant (SSG)/E6. He entered active duty in the RA on 21 February 1990 and retired 28 February 2011. 3. In the processing of this case, an advisory opinion was obtained from the Chief, Finance and Incentives Branch, USAHRC, Fort Knox, KY. The opining official recommended disapproval and stated: a. Public Law 110-252 establishes legal limitations on the transferability of unused Post 9/11 GI Bill benefits. Further, section 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 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 Department of Defense's TEB website, http://milconnect.dmdc.mil. All benefits must be transferred before the service member separates or retires. b. We do not recommend administrative relief 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 education benefits to a dependent is considered an incentive, not a benefit. The transfer 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 that the Soldier 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 does not require a formal one-on-one counseling, group counseling, nor 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 on the VA Form 22-1990. A Soldier acquires TEB eligibility as stated in paragraph 1 and makes dependents eligible (awards at least one month to the dependent) by requesting TEB via the TEB website and fulfilling the TEB service obligation. (3) On the TEB website, the Soldier must acknowledge and click of 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 almost two years prior to his retirement to research the eligibility criteria for the TEB incentive. (5) The applicant should have obtained the TEB eligibility criteria through the Department of Defense Directive-Type Memorandum 09-003 (dated 22 June 2009), Attachment 2, paragraph 3a(3)(c), the Department of the Army Post 911 GI Bill Policy Memorandum, paragraph 17a(4)(c), DoD, DA, and HRC websites, and various briefings at the installation level. He was not limited to information from his unit leadership as he stated. (6) The applicant had sufficient time to submit a TEB request before he voluntarily retired on 28 February 2011. He failed to research the TEB incentive requirements accordingly. (7) If the applicant had submitted TEB anytime between 1 August 2009 – 1 March 2010 (at least one year before his requested voluntary retirement date of 28 February 2011), he would have incurred and fulfilled the one-year TEB service obligation. However, he didn’t submit a TEB request during this timeframe. He submitted his voluntary retirement request around the same time he requested TEB, so neither processing official was aware of the other action he had submitted. (8) The applicant submitted a TEB request on 16 June 2010. His servicing Career Counselor approved the TEB request on 23 June 2010 with a TEB service obligation of 16 June 2011 (viewable in the upper left-hand corner of the TEB website for him to see). As of the TEB approval date, his retirement order had not yet been published; therefore, the servicing Career Counselor did not know of his already committing to the retirement date of 28 February 2011 and his inability to fulfill the one-year TEB service obligation. Had the servicing Career Counselor known of the requested retirement and the applicant’s inability to fulfill the TEB service obligation, the TEB request would have been rejected immediately. This does not relieve the applicant of his responsibility to know the TEB eligibility criteria and of his inability to fulfill the TEB service obligation. (9) Given his TEB request and voluntary retirement request may have been submitted around the same time-frame, the applicant planned on retiring 28 February 2011, so by submitting a retirement request he made himself ineligible for TEB. (10) The applicant submitted a voluntary request for retirement with a projected retirement effective date of 28 February 2011. On 10 August 2010, his voluntary retirement request was approved, retirement orders were published with a retirement effective date of 28 February 2011, and he was provided copies. Also, at that time, he had another opportunity to recognize he would not have been able to fulfill the TEB service obligation because he would have retired before fulfilling the service obligation. (11) Throughout the TEB process, the applicant had the responsibility to check the TEB website for the status of his TEB request and any TEB service obligation (viewable in the upper left-hand corner of the TEB website). Upon the 23 June 2010 TEB approval update with the one-year TEB service obligation, he should have recognized he would be unable to fulfill the TEB service obligation. He should have contacted the servicing Career Counselor immediately to report his approved retirement date. If he had done so at that time, the TEB request would have been rejected immediately. He failed to inform the servicing Career Counselor of his inability to fulfill the TEB service obligation, as required. (12) On 21 January 2014, the applicant accessed the TEB website after his retirement and adjusted benefit allocations for his dependents. At that time, he again would have also seen the TEB Obligation End Date of 16 June 2011 in the upper left-hand corner of the TEB website. Also, he again should have realized he had not fulfilled the TEB service obligation and was ineligible for TEB. He did not inquire with the HRC GI Bill Team at that time regarding TEB eligibility. Instead, he continued allowing his dependent(s) to proceed with processing a request to the VA for education benefits he should have never requested in June 2010. (13) This office sympathizes with the applicant and his dependents; however, the time for him to make himself aware of TEB eligibility criteria was before he submitted the retirement request. Instead, he waited until he submitted his request for retirement. At this time, he was beyond a reasonable timeframe for him to fulfill the one-year TEB service obligation. 4. A copy of the advisory opinion was provided to the applicant for his review and comment. He states: a. The USAHRC advisory dated 29 August 2016 is to aid in your board's analysis before deciding to adopt in whole, in part, or reject HRC’s advisory opinion. It is to give the board a detailed view of the entire situation that occurred. He remains hopeful that the board will see how something like this could go unnoticed causing dire consequences for the sincere and dedicated service member and his dependents. Additionally, in his response to: b. Paragraphs "a through c": “All informative as of the date of the letter.” This information could have been in place since 2005 and he still would not have known the details, because he had no relevant dependents and no plans of retirement. He also points out that he was in Okinawa, Japan, for more than 3 years (October 2006 - December 2009). c. Paragraph "d": He hadn't decided to transfer his Post 9/11GI Bill benefits to his dependents at 2 years out. During that time, his son and daughter had no definite plans of attending college. He had no knowledge of how to transfer his benefits and did not know he could. Once he found out that he could do so, which was less than a year from retirement, he started to think about it. He ultimately decided that he didn't need the Post 9/11 GI Bill as much as his dependents. When he finally made the decision to do so, he submitted his request for retirement. He had no knowledge at that point about the TEB website. d. Paragraph "e": This memorandum mentioned was not at his disposal. He had not yet considered retiring. In June 2009 (date of said memorandum) he was in Okinawa, Japan, on Kadena Air Base. This is not an Army installation. His daughter was having his granddaughter on the 13th day of that month on the island, and he was preparing for a military school (Patriot Master Gunner) in Korea from September through November 2009. He goes on to state that USAHRC is making an assumption based on what is supposed to happen through protocol and order of business. It didn't quite work the way they vision it. e. Paragraph "f and g": As he stated above, he did not know he could transfer his benefits and he had no intentions of retiring. He took a career service bonus in 2001 which allowed him to pay off old creditors in order to keep his secret security clearance, thereby allowing him to remain in the Army and provide for his family. The applicant had a discussion with his spouse about numerous issues and options and decided to retire at 21 years. He states that if the career counselor had done his job and put all the information at his disposal, he would have gladly done a few extra months and put his retirement off. The applicant states the career counselor did not mention the TEB website, and only printed out paperwork and highlighted where he needed to initial. f. Paragraph "h": When he submitted his TEB request on 16 June 2010, he had just found out from leadership through a conversation, that if he wanted his dependents to have benefits for education, he better do it prior to submitting his retirement request. At that point, he went as soon as possible to the education center to ask questions on how to do it. They guided him in the right direction and he ended up at a career counselor's desk to complete the request. The career counselor did not show or suggest any website. Furthermore, if he had known that approval of his request carried a service obligation, he would have gladly held off his retirement. g. Paragragh "i": HRC should have sent the retirement approval with an adjusted date past June 2011. That was the second mistake and final chance to catch this very unfortunate shortfall. There should have been some kind of an alert to HRC that he had a request in the system that carried a career obligation/commitment. The applicant says HRC could have put the request on hold instead of sending him a letter 5 years after his dependents were utilizing education benefits and mentioning recoupment. h. Paragraphs "j and k": When the retirement approval finally came down he did not know how to go about checking on his TEB status. He adds Soldiers are normally notified once any request for action is approved. Once his son started to talk about going to college, that is when he started looking at how it would be funded and all the answers came from VA and not HRC. He knew the TEB process they mention in their letter was complete, because all his son did was talk to a VA representative and was directed to VONAPP (Veterans Online Application). The process went smooth and no red flags appeared notifying him that he could not use his Post 9/11 GI Bill to attend college. Additionally, his daughter used it and there was nothing that prohibited her. i. Paragraph "I": In 2014, when he accessed the TEB website, he was directed to do so by an HRC representative. The HRC representative pulled up his information over the telephone and said "Most service members do not transfer the entire benefit to one dependent in case that dependent doesn't do well." Her advice was to only dedicate a portion of it and if the dependent doesn't do well, he can dedicate what's left to another dependent or use it himself. He did exactly what the representative told him and she never mentioned the service obligation or anything about the top left-hand corner. Please keep in mind that he still didn't know about this service obligation until he received a letter mentioning recoupment. He believes this is just wrong and unjust in so many ways. j. Paragraph "m": In closing these comments, he would just like to say: Thanks to HRC for sympathizing with him and his dependents; however, he did everything he was told to do. He can only act on the things that were brought to his attention. He did not fail to educate himself, because there was no need to do so. He would have observed the upper left-hand corner of the TEB website and observed approval status if he knew it existed; he did not. Now his daughter is struggling from garnishment of her earnings, making it difficult for her as a single parent. He is facing recoupment of more than he is able to pay and HRC is not the culprit, but is the major player here. The Career Counselor could have stopped it all by being thorough. HRC should have seen it as soon as they considered approving the retirement. Someone at HRC was not very thorough. So if these comments do not get some resolve, he will let his Congressman know about the situation and if he can find an attorney that is willing to get involved, he will do that. He pleads with the Board to waive this unfortunate series of events. He is true and honest. However, he absolutely has to know something exists in order to do something about it. 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 Army, DOD, and VA) 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, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states 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: a. has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or b. has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, 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, or c. is or becomes retirement eligible during the period from 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 duty 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 becomes 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 was eligible to transfer his education benefits under the TEB between August 2009, the date this program was implemented, and 16 June 2010, the date he submitted his request. 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. 2. While the applicant states he was not aware of the service obligation and sought assistance from his Career Counselor, HRC staff, and leadership, he provided no evidence to support his statement. The TEB website was operational in 2009. When he submitted his application on 16 June 2010, his career counselor approved his TEB request with a service obligation of 16 June 2011 (1 year). However, on 28 February 2011, the applicant retired from active duty. 3. The option to transfer education benefits to a dependent is considered an incentive, not a benefit. The transfer 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 that the Soldier commit to and fulfill additional service, in most cases from the TEB request date. 4. The applicant did not meet his TEB service obligation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014794 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014794 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2