ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 October 2019 DOCKET NUMBER: AR20160018268 APPLICANT REQUESTS: waiver of his service obligation for the transfer of his educational benefits. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter to Department of Veterans Affairs (VA) Board of Veterans Appeals * Notice of Disagreement * Retirement Orders * Continuation on Active Duty Authorizations * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 93 (Record of Emergency Data) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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: a. The Department of Defense (DoD) informed the VA Muscogee Regional Office that his Post-9/11 GI Bill Transfer of Education Benefits (TEB) to his son, was found ineligible due to service obligation not being met. Consequently, they informed his son, that he must repay $26,964.19 due to no fault of his own. On 17 August 2016, his son, received a letter from the VA stating, DoD notified the VA, Muscogee Regional Office that the veteran is not eligible under the TEB program due to issues with his/her service obligation. Therefore, all amounts paid to him under TEB are now an overpayment. The letter also stated, that his overpayment debt is $26,964.19 and he must repay this amount. b. His first issue with this is that the Transfer of Education Benefits (TEB) authority approved his request in March 2013, well over a year before he retired from Active Duty Army on 1 September 2014. Secondly, his son, has been attending Green River College since September 2014, and has been approved for funding, enrollment after enrollment, ever since his initial enrollment into Green River College. Thirdly, if he wasn't eligible for the TEB, why did it take 23 months for the DoD and the VA, Muscogee Regional Office to identify this issue? Lastly, he recently spoke to a U.S. Army Human Resources Command (HRC) Representative by phone. The representative stated that the reason his Transfer of Entitlements was found ineligible was because he didn't complete his service obligation. c. Their records showed his ETS date was 31 October 2014. He communicated to them that the date of 31 October 2014 was set by HRC, Enlisted Personnel Management Branch based on a Continuation of Active Duty (COAD) Extension Request he submitted in October 2011. Additionally, the COAD stated, "You are authorized retention on active duty for a period of three years, unless separated earlier under appropriate regulation or statute.”? Based on the COAD extension, he submitted his request for retirement to coincide with his 24th year of service date of 1 September 2014, two months short of the 31 October 2014, not because he didn't want to serve an extra two months. The fact that his TEB eligibility was denied because he didn't serve an extra two months after 24 years of active duty service is just disgraceful. He is requesting that his TEB eligibility be reinstated. 3. The applicant provides: a. Letter to VA Board of Veterans Appeals, dated 3 September 2016, which states he is requesting the VA Board of Appeals, on behalf of his son waive the entire overpayment amount of $26,964.19. b. Notice of Disagreement, dated 3 September 2016, which states his son was not eligible under the Transfer of Entitlement (TEB) program due to issues with his/her service obligation, according to the DoD. c. Retirement Orders, dated 8 November 2013, which states that his scheduled date of separation was 31 August 2014. d. Continuation on Active Duty Authorizations, dated 13 August 2007 & 20 October 2011, which authorized the applicant to remain on active duty, but service beyond 31 October 2014 was not authorized. e. DD Form 214, dated 31 August 2014, which states he was honorably retired after 24 years and 2 days of active service with sufficient service for retirement. f. DD Form 93, dated 19 November 2012, which shows that his dependent son was listed on official Army documents, as his son. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army (RA) on 29 August 1990. b. He served in the Regular Army in a variety of assignments stateside and overseas to include, Germany, Korea, Bosnia, Kuwait, Iraq, and Afghanistan. c. He was honorably retired on 31 August 2014, under the provisions of Army Regulation (AR) 635-200, chapter 12 for sufficient service for retirement. He had 24 years and 2 days of active service. 5. In the processing of this case, the HRC Incentives Programs Manager reviewed the applicant's case and rendered an advisory opinion on 19 July 2019. The HRC Incentives Programs Manager opined: a. Recommend disapproval of the applicant’s request to waive the Post 9/11 GI Bill Transfer of Education Benefits (TEB) service obligation. b. He had sufficient time to research the eligibility criteria for the TEB incentive, submit a TEB request and research the TEB service obligation requirements before he retired on 31 October 2014. He should have obtained the TEB eligibility criteria through the DoD Directive-Type Memorandum 09-003 (dated 22 June 2009), Attachment 2, paragraph 3a(3); the Department of the Army (DA) Post 911 GI Bill Policy Memorandum, paragraph 17a(4); DoD, DA, and HRC websites; and various briefings at the installation level. He failed to research the TEB incentive requirements accordingly. c. The applicant submitted a TEB request on 20 March 2013. His TEB request was approved on 30 April 2013 with a TEB service Obligation End Date (OED) of 31 October 2014, equivalent to his Continued on Active Duty (COAD) date (viewable in the upper left-hand comer of the TEB website for him to see). Because he attained 20 years of service on 29 August 2010, he qualified for a 2-year Additional Duty Service Obligation (ADSO), instead of the standard 4-year ADSO, per the DA Post 911 GI Bill Policy Memorandum, paragraph 17a(4)(d). However, his COAD date was 31 October 2014, so his TEB OED was less than the 2-year ADSO. d. He had not requested retirement as of the date the TEB request was submitted and approved. Instead of remaining in service until the COAD date to fulfill the TEB OED, he elected to retire with a projected retirement effective date of 31 August 2014. He could have remained in the U.S. Army beyond 24 years; however, he elected to retire at 24 years. Again, he made himself ineligible for TEB when he requested retirement 31 August 2014, which was before his TEB OED. e. His dependents are not eligible to receive TEB because did not fulfill his service obligation. His dependent son, applied to VA and received a Certificate of Eligibility (CoE) from VA while he was still in the U.S. Army and fulfilling the TEB OED on Active Duty. However, his dependent began using TEB after the applicant retired. 6. On 26 July 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a response and/or a rebuttal. He did not respond. 7. 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. a. 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. The incentive requires the Soldier to commit to and fulfill additional service, in most cases, from the TEB request date. b. 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 (if applicable). c. 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. d. The Post 9/11 implementation began on 1 August 2009. The applicant had nearly 3 years prior to his transfer to the Retired Reserve date to research the eligibility criteria for the TEB incentive. e. 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 DA Post-911 GI Bill Policy Memorandum, paragraph 17a(4)(c); DOD, DA, and HRC websites; and various briefings at the installation level. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. Board members noted that HRC does not recommend relief. The Soldier was approved for the TEB with a stipulation that he would serve a certain number of years/months as a result of this approval. He did not. The Post-9/11 GI Bill is a benefit for the Soldier while 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. The incentive requires the Soldier to commit to and fulfill additional service, in most cases, from the TEB request date. Board members noted that the applicant did not fulfill his obligations. He served his time, applied for the benefit, and misjudged the timing. However, in the Board’s opinion, it was a minor administrative error. The Board members agreed to grant relief by showing he applied for the benefit in enough time to finish his SRR before placement on the retired list. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed an application and the Army approved the request to transfer his Post-9/11 GI Bill benefits to the applicant’s family member on 31 August 2012, provided all other program eligibility criteria are met. X CHAIRPERSON Signed by: 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: 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. a. The Post-9/11 GI Bill is a benefit for the Soldier as a reward for service during a time of conflict. The Post 9/11 implementation began on 1 August 2009. 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. The incentive requires the Soldier to commit to and fulfill additional service, in most cases, from the TEB request date. b. 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 (if applicable). c. 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.