ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 November 2019 DOCKET NUMBER: AR20170002794 APPLICANT REQUESTS: to change his retirement date from 4 April 2016 to 10 December 2018. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Department of Veterans Affairs (VA) Certificate of Eligibility * Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) memorandum, dated 6 February 2011 * Character reference letters * Email exchange * VA Debt Management Center Letters FACTS: 1. The applicant states that in August of 2016 he received notification from the VA that due to a breech in his service contract, he lacked 4 years of service to fulfill his obligation in service. Because of this, he now owes the total sum of $36,414.98, the amount that was paid to his dependent son through the Post 9/11 GI Bill. This action has placed extreme financial hardship on his family. Neither his son nor he have the means to repay this debt. He doesn’t believe his son or he should have to repay this based on benefits were correctly earned. 2. Applicant provides: a. A self-authored letter explaining the details and circumstances surrounding his education debt. The applicant states “He request the Department of Army take into consideration his total time of service and adjust his retirement from 4 April 2016 to 10 December 2018. In doing so this will reflect that he fulfilled his service obligation and allow DOD to notify the VA that his service obligation was met and ultimately relieve his son from obligation to re-pay $36,414.98 in student loans based of the finding of a breech in contract.” b. Letter, dated 26 January 2016, from DOD to the applicant, approving by his service to transfer his unused Post 9/11 GI Bill benefits’ to member(s) of his immediate family. c. Four letters from the VA to his son, informing him that due to receiving benefits to which he were not entitled to, he has incurred a debt that will need to be paid in full. The debt is because the applicant’s service determined the applicant had not met the required service obligations to be eligible to transfer the benefits. d. Four character reference letters detailing the high integrity that the applicant has. They also go on to say he was one of the most respectable Noncommissioned Officer (NCO). They state the applicant deserves to benefit from his years of dedicated service and not be penalized for something he had no clue was even transpiring. 3. Review of the applicant's service records shows: a. Having had prior enlisted service in the United States Army Reserves (USAR) and the Regular Army, he enlisted in the Tennessee Army National Guard (TNARNG) on 21 January 2005. He served through several reenlistments. b. On 6 February 2011, he received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). c. He served on active duty from 1 March 2013 to 30 September 2015. d. On 26 January 2016, the DOD Manpower Data Center issued the applicant an approval memorandum to transfer his unused Post 9/11 GI Bill benefits to members of his immediate family. The approval memo stated his transfer request date was 11 December 2014 and his approval date was 5 February 2015. His service obligation end date is 10 December 2018. e. On 10 February 2016, the applicant requested retirement. He stated that he was requesting retirement at the "earliest date convenient." f. He was transferred to the Retired Reserve on 4 April 2016 (2 years and 7 months short of his service obligation). His NGB Form 22 (Report of Separation and Record of Service) shows he completed 26 years, 7 months, and 7 days of total service for pay. 4. 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. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded that the retirement date depicted on the applicant’s discharge documents were correct. The Board found that the applicant was aware of his service obligation upon transferring the education benefit to his child. In addition, the applicant requested retirement was voluntarily submitted. Therefore, the Board found insufficient evidence or justification to make a change to the applicant’s retirement date. 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. Public Law 110-252 established legal limitations on the transferability of unused Post 9/11 GI Bill benefits. The law limits 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 on or after 1 August 2009: 2. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states and 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 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. On 10 July 2009, the Army released the Post-9/11 GI Bill Implementation Policy which identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. The policy states, in part, that those who retire on or before 1 August 2009 are, by law, not eligible to transfer unused Post- 9/11 GI Bill benefits because their last day of duty will be 31 July 2009 and they will transfer to the Retired List on 1 August 2009. However, the policy does apply to those so retired if they are recalled to active duty and serve on or after 1 August 2009 and before 2 August 2012. 4. Military Personnel Message Number 13-102, dated 15 April 2013, subject: Post 9/11 GI Bill TEB Four-Year Service Obligation for Approved TEB Requests Submitted after 1 August 2013, applied to Soldiers who would submit a Post 9/11 GI Bill REB on or after 1 August 2013, resulting in an approval to transfer. a. The purpose of this message was to emphasize that all Post 9/11 GI Bill TEB requests submitted and approved after 1 August 2013 would incur a 4-year service obligation from the TEB request date, regardless of years in service (except when precluded by either policy or statute from committing an additional 4 years (for example, temporary early retirement authority). b. The 4-year obligation incurred by TEB requests approved on or after 1 August 2013 begins on the TEB request date and must be served in the same Army component. c. A zero, one, two or three-year service obligation will no longer be available for those who request TEB on or after 1 August 2013. All Soldiers who request TEB on or after 1 August 2013 will incur a 4-year service obligation regardless of time in service. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170002794 4 1