ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20170006621 APPLICANT REQUESTS: extension of Post-9/11 GI Bill Educational Benefits for 36 months for his spouse/children based on his continuous length of service vice the benefits received. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Self-Authored Letter to the Department of Veterans Affairs, dated 25 July 2016 FACTS: 1. The applicant states: * he received his Montgomery GI Bill educational benefits at a reduced rate because he was awarded a local scholarship at his college * he requests reinstatement of 18 months of educational benefits for his two children based on the disparity in the benefits he received and the length of service he provided to the military * he believes it is a disservice or injustice to take 18 months of benefits away from an old program that did not even pay for his tuition * he requests reinstatement of educational benefits for a total of 36 months 2. He provided a letter he submitted to the Buffalo Regional VA Office Education Officer, dated 25 July 2016, wherein he requested an audit of his VA Post-9/11 GI Bill (Chapter 33) case. He stated: * he received Montgomery GI Bill educational benefits for books, etc., during college in 1991 and 1992 * the amount was only a few hundred dollars a month because he had a full scholarship at the college he attended * he did not realize that a new Post-9/11 GI Bill would be enacted in the future * he fails to understand how a few hundred dollars a month equates to losing almost 2 years of eligibility for the Post-9/11 GI Bill educational benefits for his two children * he completed over 24 years of commissioned service and is still serving * he requests reinstatement of all 36 months of the benefits he earned during his military service * at the very least, an audit should be conducted to determine how much his benefits should be decremented * it should not equate to a one-for-one deduction for a few hundred dollars a month * if he had known at the time that utilizing his Montgomery GI Bill educational benefits would have precluded him from a future benefit that would be open to his family, it would have been an easy decision to decline these benefits * he was not given the opportunity nor could anyone have known these benefits would become available * he deployed to Iraq and Afghanistan and he would appreciate the educational benefits that his elected leaders feel veterans deserve * he is certain these same elected officials would not be pleased to learn these educational benefits are being denied to veterans because they used old VA educational benefits in the past * certainly a formula should be used in unique cases such as his, where only partial educational benefits were used * educational benefits should not be decremented on a one-for-one basis 3. The applicant, an Army National Guard Active Guard Reserve colonel, retired from active duty on 30 June 2017 and was placed on the Retired List effective 1 July 2017. 4. On 25 March 2019 in response to an inquiry from the ABCMR, the GI Bill Program Manager, Education Service Branch, National Guard Bureau, recommended denial of the applicant's request. He stated: a. The applicant used approximately 17 months of educational benefits under Title 38, chapter 30 (Montgomery GI Bill), ending in April 1997. Chapter 30 educational benefits were the only benefits the applicant was eligible to relinquish; he was eligible to transfer the balance of his unused chapter 30 educational benefits, approximately 19 months. b. There is considerable confusion with the concept of "12 extra months" of benefits. This misconception comes from a VA rule that states an individual may receive up to 36 months in any one GI Bill benefit, with a lifetime cap of 48 months if eligible for more than one benefit. By the time the Post-9/11 GI Bill became law, many service members had used the entire 36 months of their chapter 30 (Montgomery GI Bill) educational benefits. When the individual became eligible for the Post-9/11 GI Bill, since there were no benefits to relinquish, the VA treated the Post-9/11 GI Bill as a second benefit. Those individuals then became subject to the 48-month cap and received 12 months of educational benefits under the Post-9/11 GI Bill. This has created the perception of an "additional 12 months." 5. On 27 March 2019, the Chief, Special Actions Branch, National Guard Bureau, rendered an advisory opinion regarding the applicant's request for reinstatement of his Montgomery GI Bill educational benefits for a total of 36 months wherein he recommended disapproval and stated: * the applicant used approximately 17 months of chapter 30 (Montgomery GI Bill) educational benefits ending in April 1997 * chapter 30 was the only benefits the applicant had to relinquish and therefore he was eligible to transfer the balance of unused chapter 30 benefits, or approximately 19 months, to his chapter 33 (Post-9/11 GI Bill) educational benefits * on 15 April 2011, the applicant requested to transfer his chapter 33 (Post-9/11 GI Bill) educational benefits to his dependents – which was approved * although the applicant contends that had he known using his benefits would preclude him from future benefits and that he would have declined these benefits is speculative * this opinion was coordinated with the Maryland Army National Guard and the Army National Guard Incentives Branch 6. The applicant was provided a copy of the advisory opinion on 1 April 2019 and given an opportunity to comment and/or submit a rebuttal. He did not respond. BOARD DISCUSSION: After review of the application and all supporting documents, the Board found that the evidence presented does not demonstrate the existence of a probable error or injustice pertaining to the applicant's request to transfer additional chapter 33 (Post-9/11 GI Bill) educational benefits to his dependents. The Board agreed with the National Guard Bureau advisory opinion that the applicant had already used 17 months of his chapter 30 (Montgomery GI Bill) educational benefits and was able to transfer the remaining 19 months to his chapter 33 (Post-9/11 GI Bill) educational benefits, which he then was approved to transfer to his dependents. 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. The Post-9/11 Veterans Educational Assistance Act of 2008 improves educational benefits for certain individuals serving on active duty in the Armed Forces on or after 11 September 2001. a. On 22 June 2009, the Department of Defense established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy, in effect at the time, stated an 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: (1) 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 (2) 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 Department of Defense) 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 (3) is or becomes retirement eligible during the period 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. b. The program guidance further stipulates that if a service member becomes retirement eligible during the period 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents. A member is considered to be retirement eligible upon completion of 20 years of active Federal service or 20 qualifying years as computed under Title 10, U.S. Code, section 12732: (1) service members eligible for retirement on 1 August 2009 – no additional service is required; (2) service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service is required; (3) service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required; (4) service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required; (5) service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and (6) active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability. 2. Military Personnel Message Number 13-102, dated 15 April 2013, subject: Post-9/11 GI Bill Transfer of Education Benefits (TEB) 4-Year Service Obligation for Approved TEB Requests Submitted on/after 1 August 2013, provides that all Post-9/11 GI Bill TEB requests submitted and approved on/after 1 August 2013 will 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 (e.g., Temporary Early Retirement Authority). The 4-year service obligation incurred by TEB requests must be served in the same Army component. A 0, 1, 2, or 3-year service obligation will no longer be available for those who request TEB on/after 1 August 2013. By law, those Soldiers who retired and were placed on the Retired List on/before 1 August 2009 are ineligible to transfer unused Post-9/11 GI Bill benefits because their last day of duty was on/before 31 July 2009. 3. Title 38, U.S. Code, section 3312 (Educational Assistance: Duration) states an individual entitled to educational assistance under this chapter is entitled to a number of months of educational assistance under section 3313 equal to 36 months. 4. Title 38, U.S. Code, section 3313 (Educational Assistance: Amount; Payment) states each individual entitled to educational assistance under this chapter who is pursuing an approved program of education shall be paid the amounts specified to meet the expenses of such individual's subsistence, tuition, fees, and other educational costs for pursuit of such program of education. 5. Title 38, U.S. Code, section 3327 (Election to Receive Educational Assistance) states an individual making an election shall be entitled to educational assistance under this chapter in accordance with the provision of this chapter, instead of basic educational assistance under chapter 30 of this title, or educational assistance under chapter 107, 1606, or 1607 of Title 10, as applicable. The number of months of entitlement of the individual to educational assistance under this chapter shall be the number of months equal to the number of months of unused entitlement of the individual under chapter 30 of this title, as of the date of the election. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170006621 5 1