ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 April 2019 DOCKET NUMBER: AR20160014606 APPLICANT REQUESTS: his educational benefits be transferred to his spouse and children. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affair (VA) Letter * Reference Letters x 2 FACTS: 1. The applicant states at the time of demobilization on both deployments in support of Operation Enduring Freedom, he was never given information regarding assigning benefits to his dependents to use at a later date. During the support of Operation Iraqi Freedom, he transferred all of his Post 9/11 GI Bill Benefits to his daughter to attend college. During that time, he was never informed that if he wanted another dependent to use the benefits, he would have to enroll them at the same time he enrolled his daughter. At the time his son was only 11 years old. If he had been told to enroll his son at the time, he would have. The applicant's son is going to be 18 years old and the applicant would like to transfer the remaining 16 months and 24 days of unused entitlement. 2. The applicant provides a letter from the VA showing: * Department of Defense (DOD) not the VA determines the eligibly for individuals to transfer benefits to their dependents under the Post 9/11 GI Bill * To be eligible to transfer entitlement, individuals must meet the following requirements: o eligible for the Post 9/11 GI Bill o be on active duty or selected reserve at the time of transfer o have completed six years in the Armed Forces to transfer entitlement to the spouse and ten years to transfer entitlement to the children o agree to serve four more years * the applicant's records show he transferred the entire 36 months of his Post 9/11 GI Bill to one approved child dependent on 1 November 2009 * the dependent used 19 months and 6 days as of 27 July 2015 * there is no information to indicate transfer of entitlement under Post 9/11 GI Bill to the additional dependent has been approved by the DOD 3. Two reference letters were provided showing: a. from a retired Lieutenant Colonel the applicant served with: * the applicant was a commendable infantryman, he excelled at his military duties * while deployed, he experienced many causalities * after he returned from deployment, there were issues with his drill attendance and difficulties reintegrating * the applicant was a professional, loyal and highly skilled member * with the turnover in personal, their lack of knowledge or understanding of his diagnosis, and his lack of drill attendance, that command further traumatized the applicant by reducing him to E1 and discharging him which was unnecessarily harsh considering the applicant was awarded a Bronze Star for his service in Afghanistan, no question he was an excellent Soldier * at the very least, the applicant could have been transferred to the inactive guard until he could sort out his personal issues and return to active drill status * he should be allowed reenlistment, have the ability to complete his military career, and retire at the highest rank served; he earned this b. from a retired Armor Soldier he served with: * the applicant turned the S-3 into a smooth functioning, highly organized operation and worked hours well beyond those of the other staff * he graduated from Drill Sergeant School and served as a Senior Drill Sergeant in the unit * the applicant passed on civilian employment advancements to further his military career * he was always one of the first in line when volunteers were requested * the applicant left the Army a few years short of retirement due to civilian employment opportunities which is a decision he regretted almost immediately * during his service, the applicant’s attitude was at all times commendable, always displaying a pride in being a member of the Army in his job performance, appearance and conduct 4. A review of the applicant's records show: * 1 January 1983 to 31 December 2003 - he enlisted in the United States Army Reserve * 26 January 2009 – he enlisted in Wyoming Army National Guard (WYARNG) * 15 April 2009 to 24 April 2010 and 29 July 2010 to 22 September 2011 - he was mobilized to deploy * 19 August 2013 - Orders 231-018 show the applicant was reduced from Sergeant First Class (SFC) to Private (PV1) , reason: Misconduct ,effective date 5 August 2013 * 30 August 2013 – Orders 242-011 show the applicant received an Under Other Than Honorable Conditions discharge, loss code: Continuous and Willful Absence 5. 2 October 2017, the VA provided the applicant a letter showing his VA benefits were reviewed, and it was recommended his current benefits payment continue unchanged based on the diagnosis of Post-Traumatic Stress Disorder (PTSD). 6. 11 June 2018, the WYARNG Adjutant General Officer provided a memorandum Subject Information regarding Transfer of Education Benefits (TEB) ABCMR case for [applicant] showing: * the applicant had two honorable qualifying periods of service for the Chapter 33 Post 9/11 GI Bill * on 2 November 2009, the applicant requested TEB, the request was approved * at the time the applicant was required to serve four more years as a member of the uniformed service, he was required to remain as an active drilling member until 2 November 2013 * applicant states he was not informed that he would not need to allocate months to all his dependents, at the time, it is possible he was not properly counseled on this requirement * Order 242-011 shows the applicant was discharged prior to the completion of four years; therefore, he was no longer eligible for TEB upon his discharge * recommend not approving the applicant’s request to disperse the remainder of the Post 9/11 GI Bill, recommend against seeking recoupment of the benefits 7. 12 July 2018, the National Guard Bureau (NGB) provided an advisory opinion showing: * the applicant requested for a retroactive transfer of education benefits (TEB) to his dependents * NGB recommends disapproval * applicant states he was not provided sufficient information regarding the execution of the TEB and assigning of benefits to dependents * the applicant's statement that he did not receive sufficient information regarding the execution of the TEB is congruent with the systemic issues suffered through the US military forces immediately upon the implementation of the program * the applicant did not complete his required military service obligation as required by Title 38 United States Code (USC) 3319 * 1 November 2009, the applicant completed TEB and was eligible for retirement; therefore, he agreed to serve an additional 4 years of military service in order to validate the TEB transfer request, the obligation would have been completed on 31 October 2013 * NGB Education Service Branch reports the applicant was coded as AWOL (Absence without Leave) during four unit assemblies from 18-20 May 2012, 3-5 August 2012 and 12-14 April 2013, this explain the applicant's characterization of service upon his discharge from the Army National Guard: Under Other than Honorable Conditions due to continuous and willful absence, effective date 5 August 2013 three months short of his required service obligation * VA may lawfully collect the portion of the education incentive utilized, according to the Benefits for Education Administrative Service Tool the amount utilized was $46,914.33 * the applicant did not serve honorably at the end of his career and his behavior was the catalyst for his discharge prior to the completion of the service obligation * the applicant no longer qualified for TEB * NGB recommends disapproval of the applicant's request and recoupment of the utilized portion of the incentive * NGB Education Service Branch concurs with this recommendation * WYARNG was coordinated with for this opinion 8. 8 August 2018, the applicant provided a rebuttal to the Advisory Opinions showing: * he has another ABCMR application requesting a discharge upgrade * prior to 18th birthday the applicant joined the Army * deployment in support of Operation Iraqi Freedom broaden the applicant's military skills, during this time he was recommended to attend Warrant Officer School * during his deployment in support of Operation Enduring Freedom, he trained and advised Afghan forces, he faced regular troop contact, IEDs, suicide bombers, artillery barrage, death and wounded soldiers and civilians to include women and children * after his deployment, he and his family moved to California, but he continued to drill with WYARNG once a month for a year; he requested a state transfer since the new Command was not utilizing him; he was told if he could find a unit in California to accept him, he could begin drilling with that unit as long as he provided WYARNG a paragraph/ line number from the new unit * he was accepted with the 40th Infantry Division in Los Alamitos, CA; he provided WYARNG a paragraph/ line number from the new unit and did not hear anything for weeks, WYARNG unit's First Sergeant contacted the applicant stating he would not be released from the unit for several months, and he was expected to be at drill that upcoming weekend. The applicant could not attend drill because he did not make prior arrangements with his employer to attend drill * applicant states he continued to drill with WYARNG when he could make the commute from California to Wyoming, but the new Command in Wyoming refused the applicant's request for transfer * applicant reports when he began to experience depression, he went to the VA and was diagnosed with PTSD and has a disability rating of 50% * his experience with the WYARNG resulting from a combination of miscommunication, lack of support, change in command and PTSD is not a true picture of his career * having a negative rating hanging over him is more than he can handle at times, as well as losing his Sergeant First Class (E7) rank is incomprehensible * he requests these facts to be considered when determining the outcome of his request to transfer his unused portion of his Post 9/11 Gill Bill Benefits to his dependent children 9. Title 38 United States Code (USC) 3319 shows failure to complete service agreement. In general, except as provided in subparagraph (B), if an individual transferring entitlement under this section fails to complete the service agreed to by the individual under subsection (b)(1) in accordance with the terms of the agreement of the individual under that subsection, the amount of any transferred entitlement under this section that is used by a dependent of the individual as of the date of such failure shall be treated as an overpayment of educational assistance under paragraph (1). Exception subparagraph (A) shall not apply in the case of an individual who fails to complete service agreed to by the individual by reason of the death of the individual. 10. 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. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, letters of support, and the advisory opinion were carefully considered. One Board member recommended relief based on a perceived lack of cooperation with the WYARNG unit, and all the issues that followed was based the WYARNG decision to deny his transfer of benefits before the discharge. The applicant received an UOTHC discharge characterization. Public law provides members must have an honorable discharge characterization to transfer benefits. Based upon the characterization of his service, the majority of the Board agreed he is not eligible to transfer benefits, and there was no error or injustice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 38 United States Code (USC) 3319 Failure to complete service agreement. In general, except as provided in subparagraph (B), if an individual transferring entitlement under this section fails to complete the service agreed to by the individual under subsection (b)(1) in accordance with the terms of the agreement of the individual under that subsection, the amount of any transferred entitlement under this section that is used by a dependent of the individual as of the date of such failure shall be treated as an overpayment of educational assistance under paragraph (1). Exception subparagraph (A) shall not apply in the case of an individual who fails to complete service agreed to by the individual by reason of the death of the individual. 2. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160014606 2 1