ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 September 2019 DOCKET NUMBER: AR20170015925 APPLICANT REQUESTS: * adjustment to retirement code * transfer of Education Benefits (TEB) to his dependent APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA)/ Entitlements to VA Benefits * Orders 15-075-00007 * DD Form 2807-1 (Report of Medical History) * DD Form 2808 (Report of Medical Examination) * Letter from Department of Veterans Affairs * Memorandum Subject: National Guard Bureau Medical Wavier Request FACTS: 1. The applicant states: a. his retirement code needs to be corrected and reported to the VA. He was forced to retire in April 2015 for not completing Basic Officer Leadership Course (BOLC) phase 1 in the required amount of time. As a result, his son whom he transferred his GI Bill Benefits to, has incurred a debt repayment of over $20,000.00 because he did not complete a 4 year service obligation. b. in September 2011 the applicant was diagnosed with an adjustment disorder with anxiety in connection with two deployments to Iraq. Because of the disorder, he was unable to complete BOLC phase 1 in the allotted time. He felt overwhelmed by the requirement to complete BOLC phase 1 and was not able to concentrate, resulting in anger outburst. This caused a disruption in his family and professional life. When he was retired from the United States Army Reserves (USAR), he attempted to join the Tennessee Army National Guard (TNARNG), but due to the disorder diagnosis, he was not eligible. He sought out disability compensation and received a 70% disability rating in August 2016, and because of these issues, he was not able to complete the required 4 year service obligation. c. according to DOD regulations a service member may de-obligate himself from the 4 year obligation if discharged or release from active duty or the selected reserve for a physical or mental condition, not a disability that did not result from his or her willful misconduct, but did interfere with the performance of duty. 2. The applicant provided a letter from VA primary care provider showing: * he has been seen since 13 September 2011; he was diagnosed with adjustment disorder with anxiety * he reported symptoms of mood swings including anger and aggression, insomnia and depression, problems with concentration and attention making it difficult for him to recall information * he worked at three different jobs between 2011 and 2016; each time he was let go due to the inability to follow complex procedures * he was prescribed citalopram which he took compliantly and consistently * he was forced to retire from the Army Reserve because he was unable to complete BOLC due to being overwhelmed when trying to concentrate and understand the material * recently the symptoms have been exacerbated and he is now receiving behavior health and mental health care monthly over the past six months 3. A review of the applicant records show: * 18 July 1990 – the applicant enter in the Army Delay Entry Program (DEP) * 3 January 1991 – he enlisted in the USAR * 3 January 1995 – he transferred to Army National Guard (ARNG) * 6 April 2011 – the applicant received commissioned as a Reserve Officer * 6 October 2011 – the applicant received a Twenty Year Letter showing he has completed the required years of qualifying Reserve Service and is eligible for retired pay on application at age 60 * 16 March 2015 – Orders 15-075-00007 show the applicant was transferred to the Retired Reserve effective 15 April 2015 for the reason of maximum authorized years of service * 11 June 2015 – DD Form 2807-1 and DD Form 2808 were completed on the applicant showing he received counseling for (ADD/ADHD), he had encounters with law enforcement, and he take medicine for depression, anxiety, he has several significant or disqualifying defects; failure to adapt, articulation, hearing loss * 7 November 2015 – the applicant medical waiver request to join TNARNG was denied due to anxiety, failure to adapt, vision and hearing loss 4. On 28 March 2019, the US Army Human Resource Command Incentives Program Manager reviewed the applicant's records and rendered an advisory opinion in his case. The advisory stated: * recommend approval of the applicant’s request to waive his Post 9/11 GI Bill TEB service obligation * applicant submitted a TEB request on 30 December 2013 and was approved on 2 January 2014, his TEB service obligation ended date was on 29 December 2017, he incurred a 4 year additional duty service obligation (no US Army system showed a Mandatory Removal/ Retirement Date(MRD)) * 19 January 2016 HRC received an inquiry from the VA Regional Processing Office (RPO) to confirm the applicant did not fulfill the TEB service obligation, the applicant’s TEB request was rejected * the rejection was due to two orders published by the US Army Reserve Command (USARC), Order 15-075-00007 published 16 March 2015 with effective date 15 April 2015 placing the applicant on the Retired Reserve with a “Reason” of “Maximum Authorized Years of Service,” resulting from applicant being disenrolled from BOLC for medical issues, but he did not go through an Medical Evaluation Board (MEB) * if this had been his final order regarding his service, HRC Education Incentive/ GI Bill Team would have adjusted the applicant’s TEB service obligation date (OED) to 15 April 2015 * the applicant wanted to return to the Select Reserve status with TNARNG in enlisted status * Order 15-104-00011 (amending Order 15-075-00007) changing “Reason” to “Completion of 20 or More Year of Qualifying Service for Ret Pay at Age 60” (this reason is not equivalent to MRD) * applicant did not return to Select Reserve Status, therefore the office was required to reject the TEB * HRC contacted USARC Officer Branch on 26 March 2019 to inquire about revoking Order 15-104-00011, HRC is awaiting a response, if orders are revoked HRC will adjust TEB OED to 16 April 2015 * if relief is granted the office will reinstate TEB after USARC revoked order 15- 104-00011, if relief is not granted HRC recommends applicant seek overpayment/ debt relief through the VA Debt Management Center * a copy of the complete advisory opinion has been provided to the Board for their review and consideration 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 6. See REFERENCES below for applicable regulations and policy to this case. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The preponderance of evidence shows that the applicant essentially reached his MRD, was medically unable to fulfill an additional service obligation, and was ultimately entitled to transfer his education benefits to his dependents. The Board agreed with the HRC advisory opinion that it would be equitable to correct the applicant’s records by revoking Order 15-104-00011 (“Completion of 20 or More Years of Qual Svc For Ret Pay At Age 60”), which will result in Order 15-075-00007 (“Maximum Authorized Years of Service”) having priority and entitling the applicant to TEB. 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 that the evidence presented was 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: * having USARC revoke Order 15-104-00011 (“Completion of 20 or More Years of Qual Svc For Ret Pay At Age 60”) * having HRC adjust the TEB service obligation to 15 April 2015 (MRD) * showing the applicant fulfilled his service obligation and remained eligible for TEB, and * relief from any overpayment/debt and reimbursement of any monies collected as a result. X CHAIRPERSON 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 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. 2. On 22 June 2009, the DOD established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy states an eligible individual is any member of the Armed Forces who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, and on or after 1 August 2009, is eligible for the Post-9/11 GI Bill and, in pertinent part, 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 service or 20 qualifying years of Reserve service. //NOTHING FOLLOWS//