ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 September 2019 DOCKET NUMBER: AR20170000870 APPLICANT REQUESTS: * waiver of his service obligation for the transfer of his educational benefits * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Certificate of Eligibility * VA Claim Denial * Unit and Installation Clearing Records 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 (ABCMR) 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. That under the original Post 9/11 GI Bill, he qualified to transfer benefits to his dependents due to having served requisite in theater in support of both Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF). Under the restructure of the Bill in 2009/2010, the issue became nebulous, especially when considering Title 32 AGR vs. Title 10 Active Component retention and attrition strategy. As of 5/1/2011, the applicant is a retired Title 32 Major/04 of the Army National Guard. September 2010: he was in retirement mode and transferred Post 9/11 GI Bill benefits to his dependents. He was advised during online transfer process that he would incur a one year service obligation. He questioned this with every administrative person at his disposal for guidance. Everyone advised this Statement of Understanding did not apply to Title 32, as it was a retention tool intended for the Active component of the US Army, or Title 10. December 2010. b. He began out-processing in preparation for May 2011 departure from service via DA Forms 137-1 /2. He transferred benefits to his eldest daughter X___ in preparation for college. Maintained yearly contact with VA to ensure benefit was in place. Was assured with every contact that everything was in place and in order. In March 2016, X___ was issued attached certificate of eligibility (one would assume the verification of service would have been accomplished at this point). His daughter subsequently enrolled in college. In August 2016, she was denied. He contacted the VA and was told the eligibility of transfer to her was denied. c. His research reveals the VA, on 8/1/2016, sought verification of service with the National Guard Professional Education Center (DOD-ARNG-PEC), who is the office determined he was ineligible to transfer benefits since he had "incurred a one-year service obligation" which should have extended his service until September 2011. Essentially, this office said he owed 5 months in order to transfer the benefit. He claims that at no time during his retirement out-processing or consultations with the VA was he informed.. 3. The applicant provides: a. VA Certificate of Eligibility, dated 2 March 2016, which states that the applicant’s dependent was eligible for 34 months of Post 9/11 GI Bill benefits. b. VA Claim Denial, dated 12 August 2012 and addressed to Xxxxxxx X. Xxxxx which states information from the Department of Defense indicates that “your parent” had an active duty obligation end date of 29 September 2011. The parent was discharged effective 30 April 2011 and did not complete his/her obligation. c. Unit and Installation Clearing Records, dated 3 December 2010, which states the applicant cleared Eastern Army National Guard Aviation Training Site. 4. A review of the applicant’s service records shows the following: a. He enlisted in the New Hampshire Army National Guard (NHARNG) on 26 January 1990. b. DD Form 214 ( Certificate of Release or Discharge from Active Duty) reflected that he was ordered to active duty on 11 February 1990 and released from active duty on 22 June 1990 with an uncharacterized characterization of service for completion of active duty training. c. DD Form 214 reflects he was ordered to active duty on 4 November 1991, and honorably separated and ordered to additional active duty on 12 December 1996. He was released under the provisions of NGR 600-5, for appointment as a commissioned officer. d. He was honorably discharged from the Pennsylvania Army National Guard (PAARNG) on 12 December 1996 under the provisions of National Guard Regulation (NGR) 600-200 (Personnel – General - Enlisted Personnel Management), for appointment as a commissioned or warrant officer. e. He executed the oath of office on 13 December 1996, and was appointed a second lieutenant in the aviation branch of the PAARNG. He served in the middle east from 22 April 2003 to 5 March 2004. f. He was honorably released on 12 February 2003 from active duty & ordered to active duty in another status. g. He was honorably released on 13 March 2004 from active duty for completion of required active service under the provisions of Army regulation (AR) 600-8-24 (Officer Transfers and Discharges). h. He was honorably retired on 30 April 2011, under the provisions of AR 600-8-24, for sufficient service for retirement. i. He was honorably resigned from the PAARNG on 30 April 2011. 5. In the processing of this case, the National Guard Bureau (NGB), Personnel Policy Division reviewed the applicant's case and rendered an advisory opinion on 17 July 2019. The NGB, Chief of Personnel Policy Division opined: a. The PAARNG has not provided any documentation to support or rebut the applicant’s claim regarding his benefits under the post 9/11 GI Bill (TEB). He however continues to assert that he did everything correctly based on the guidance he was provided and therefore his request should be granted. Due to his numerous years of military service and honorable discharge from the United States Army National Guard it is the belief of this office that he should be able to transfer his benefits to his children. b. This opinion was coordinated with the Army National Guard Incentives office. 6. The NGB, Special Actions Branch reviewed the applicant's case on 30 July 2019, and rendered an advisory opinion. The NGB, Chief of Special Actions Branch opined: a. The PAARNG provided documentation that rebuts the applicant's claim regarding his benefits under the post 9/11 GI Bill (TEB). The applicant signed and initial a statement of understanding on 29 September 2010 acknowledging that he understood that he would need to serve an additional year of service in order for his education benefits to be transferred to his dependents. The applicant chose to listen to different outside sources rather than the published doctrine that was providing him with the proper guidance to transfer his educational benefits. The review of the documents provided by the applicant and documents provided by the PAARNG leads this office to advise the Army Review Board to decline his claim. b. They recommended denial of the applicants request. 7. The applicant was provided a copy of each advisory opinion, and he responded on 23 August 2019, and asked that the 30 days be waived. He submitted an email response. 8. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 9. 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 determined relief was not warranted. Based upon the advisory opinion showing he initiated the terms and requirements of the program on 29 September 2010, the Board concluded that the applicant made a knowing decision to depart the service without meeting those terms and conditions. Therefore, the Board found insufficient evidence of an error or injustice which would warrant making a change to the applicant’s record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20170000870 6 1