BOARD DATE:  24 July 2020

		DOCKET NUMBER:  AR20180007076


APPLICANT REQUESTS:

*	reinstatement of his Post 9/11 GI Bill – Transfer of Education Benefits (TEB) to 
his dependent (spouse)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 
13 February 2018
*	Memorandum, Recruiting and Retention Battalion (BN), dated 15 March 2018
*	emails dated: 

*	15 March 2018
*	21 March 2018
*	27 March 2018
*	28 March 2018
*	13 April 2018

FACTS:

1.  The applicant did not file within the three-year period provided in Title 10, United 
States Code, in section 1552(b); however, the 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, in effect, an error in the Army National Guard (ARNG) system 
(Recruiter Zone Database) occurred from the period 1 February 2018 to 5 March 2018 
which resulted in a break in service upon his transfer from active duty to the Nevada 
Army National Guard (NVARNG).  He contends the break in service created a 
deficiency in his education benefits, which he had transferred to his spouse four years 
prior.  The unplanned break in service has created a huge family financial hardship.  
The educational benefits which were transferred to his spouse used up until date have 
been scheduled to be recouped in the amount of approximately $10,000.  
	a.  He contends his spouse has classes scheduled for entry into a dental program, 
and if they are dropped she will not be able to start the program in the fall.  She has 
been on a two year waiting list for the program.

	b.  Although they are entitled to the benefits if the issue concerning the break in 
service is not corrected they have been advised that they will still be responsible for the 
debt and his spouse will have to wait an additional year to start the Dental Program. 

	c.  He believes the signed memorandum confirming the network error and the email 
correspondence will support his claim.

	d.  He contacted the active component and ARNG education offices and he was 
directed to submit an appeal.  

3.  Orders Number 1536-09 shows the applicant was ordered to report to his home 
station (Las Vegas) on 15 April 2009 for a period not to exceed 400 days in support of 
Operation Enduring Freedom (OEF).

4.  On 7 April 2010, the applicant was released from active duty honorably.  His 
DD Form 214 shows:

*	block 9 (Command To Which Transferred) – "ARNG OF NEVADA"
*	block 12c (Net Active Service This Period) – "0000 11 23"

5.  Orders 195-612, Office of the Adjutant General, dated 14 July 2010, shows the 
applicant was discharged honorably from the ARNG and as a Reserve of the Army, 
effective 22 June 2010.

6.  On 23 June 2010, the applicant enlisted in the Regular Army.

7.  His DA Form 4991 (Declination of Continued Service Statement), dated 3 October 
2017, shows the applicant, as a result of assignment, refused to take necessary action 
to meet the length of service required and understood:

*	he may be eligible to request voluntary separation under the provisions of Army 
Regulation 635-200 (Army Duty Enlisted Administrative Separations) 
*	he may be eligible to join a Reserve Component

8.  On 8 October 2017, the appropriate authority approved the request for the applicant 
to be separated under the provisions of Army Regulation 635-200, chapter 16-4b (Non-
Retention on Active Duty).

9.  A DA Form 4187, dated 15 November 2017, shows the applicant requested 
voluntary separation under the provisions of Army Regulation 635-200, paragraph 16-4b 
for non-retention on active duty.  He understood that he may be transferred to the 
Individual Ready Reserve (IRR) until completion of his statutory or contractual 
obligation, whichever occurs later.  He requested a separation date of 13 February 
2018.

10.  On 21 November 2017, the applicant met with a Stone Education Center Transition 
Advisor and after the information was provided he understood:

*	he was not eligible for Montgomery GI Bill (MGIB) as he relinquished benefits in 
favor of Post 9/11
*	for service members who participate in the TEB early separation and failure to 
meet additional service obligation could also affect Post 9/11 eligibility for family 
members
*	the United States Department of Veterans Affairs (VA) determines eligibility for 
education benefits

11.  On 13 February 2018, the applicant was discharged honorably under the provisions 
of Army Regulation 635-200, paragraph 16-4b.  His DD Form 214 shows:

*	block 9 (Command To Which Transferred) – "N/A"
*	block 12b (Net Active Service This Period) – "0007 07 21"
*	block 18 (Remarks) – 

*	"IMMEDIATE REENLISTMENTS THIS PERIOD – 20120410 – 20140201, 
20140202 – 20180213"
*	"SIGNED DECLINATION FOR CONTINUED SERVICE, DA FORM 4991-R"

*	block 28 (Narrative Reason For Separation) – "NON-RETENTION ON ACTIVE 
DUTY"

12.  On 13 March 2018, the applicant enlisted in the NVARNG for a period of 6 years. 

13.  Order 0000322013.01, Army Element Joint Force Headquarters, dated 13 April 
2020, shows original Order 0000322013 was amended.  The additional instructions 
shows:

*	Assignment Loss Reason: "IMMED REENLST"
*	Assignment Loss Reason Date: "14 February 2018"
*	Component Category: "Train in Units-Drill Unit Res"

14.  The applicant provides supporting documents for his exception to policy (ETP) to 
reinstate his Post 9/11 TEB: 

	a.  A memorandum, Recruiting and Retention Battalion, dated 15 March 2018, 
shows from 1 February 2018 to 5 March 2018 the Recruiter Zone Database had a 
network failure which resulted in the applicants' contracts being severely delayed and 
caused a break in service.

	b.  Emails from 15 March 2018 to 13 April 2018 which show: 

		(1)  His request to a representative for recruiting and educational benefits for 
assistance to correct his TEB due to a system error, which caused a break in service 
that generated a recoupment of VA funding for his wife's college tuition.  

		(2)  An ARNG education support representative submitted a request for ETP to 
the National Guard Bureau (NGB) and received advice to submit an appeal to the 
ABCMR due to his TEB recoupment being due to a break in service, which is a matter 
of law.  His TEB would be reinstated and the VA would be notified to stop the 
recoupment if a favorable ABCMR decision was received. 

15.  Public Law 110-252, § 3311 (Education assistance for service in the Armed Forces 
commencing on or after September 11, 2001: entitlement) and § 3319 (Authority to 
transfer unused education benefits to family members) 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.  

16.  Army Regulation 635-200 (Army Duty Enlisted Administrative Separations) sets the 
basic authority for the separation of enlisted personal.  Chapter 16 (Non-Retention on 
active duty), states, in effect, Soldiers denied or ineligible for continued active duty 
service may be separated, upon request. 

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides 
that the ABCMR begins its consideration of each case with the presumption of 
administrative regularity. The applicant has the burden of proving an error or injustice by 
a preponderance of the evidence.

BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found the 
requested relief is not warranted.

2.  The Board noted the applicant requested to be discharged from the Regular Army in 
November 2017, was counseled on the potential effects a break in service would have 
on his TEB, but apparently did not attempt to enlist in the ARNG until February 2018, 
the month he was discharged from the Regular Army.  The Board noted the system 
problem that prevented his enlistment in the ARNG from being processed, but agreed 
that the problem would have been avoided by more timely action on the part of the 
applicant, i.e., his ARNG contract could have been in place several weeks prior to his 
discharge, which would have prevented the problem.  The Board found insufficient 
evidence of mitigating factors that would support a recommendation to correct the 
record to show the applicant had no break in service.  Based on a preponderance of 
evidence, the Board determined the applicant's loss of TEB due to a break in service 
was not in error or unjust.  


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, § 3311 (Education assistance for service in the Armed Forces 
commencing on or after September 11, 2001: entitlement) and § 3319 (Authority to 
transfer unused education benefits to family members) 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 must also agree to serve the prescribed additional service obligation 
based on the time in service the Soldier had on 1 August 2009.  

	d.  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.  

	e.  A Soldier must have initially requested to transfer benefits on the Department of 
Defense (DoD) Transfer of Educational Benefits (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.  

	f.  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.  

	g.  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.  

	h.  A Soldier must have no adverse action flag and have an honorable discharge to 
transfer the benefits.  

	i.  Overpayment (Joint and Several Liability) in the event of an overpayment of 
educational assistance with respect to a dependent to whom entitlement is transferred 
under this section, the dependent and the individual making the transfer shall be jointly 
and severally liable to the United States for the amount of the overpayment for purposes 
of section 3685.

		(1)  Failure To Complete Service Agreement – if an individual transferring 
entitlement under this section fails to complete the service agreed to by the individual 
under subsection (b)(1) in accordance with the terms of the agreement of the individual 
under that subsection, the amount of any transferred entitlement under this section that 
is used by a dependent of the individual as of the date of such failure shall be treated as 
an overpayment of educational assistance under paragraph (1).

		(2)  Exception – shall not apply in the case of an individual who fails to complete 
service agreed to by the individual:

*	by reason of the death of the individual; or
*	for a reason referred to in section 3311(c)(4).

	j.  Covered discharges and releases – a discharge or release from active duty of an 
individual described in this subsection is a discharge or release as follows:

		(1)  A discharge from active duty in the Armed Forces with an honorable 
discharge.

		(2)  A release after service on active duty in the Armed Forces characterized by 
the Secretary concerned as honorable service and placement on the retired list, transfer 
to the Fleet Reserve or Fleet Marine Corps Reserve, or placement on the temporary 
disability retired list.

		(3)  A release from active duty in the Armed Forces for further service in a 
reserve component of the Armed Forces after service on active duty characterized by 
the Secretary concerned as honorable service.

		(4)  A discharge or release from active duty in the Armed Forces for – 

*	subsection (a) a medical condition which preexisted the service of the 
individual as described in the applicable paragraph of subsection (b) and 
which the Secretary determines is not service-connected;
*	subsection (b) – hardship; or 
*	subsection (c) a physical or mental condition that was not characterized as a 
disability and did not result from the individual’s own willful misconduct but did 
interfere with the individual’s performance of duty, as determined by the 
Secretary concerned in accordance with regulations prescribed by the 
Secretary of Defense.
*	subsection (d) prohibition on treatment of certain service as a period of active 
duty – the following periods of service shall not be considered a part of the 
period of active duty on which an individual’s entitlement to educational 
assistance under this chapter is based:

*	period of service that is terminated because of a defective enlistment and 
induction based on—
*	the individual’s being a minor for purposes of service in the Armed Forces;
*	an erroneous enlistment or induction; or
*	a defective enlistment agreement

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.

3.  Army Regulation 635-200 (Army Duty Enlisted Administrative Separations) sets the 
basic authority for the separation of enlisted personal.  Chapter 16 (Non-Retention on 
active duty), states, in effect, Soldiers denied or ineligible for continued active duty 
service may be separated, upon request.  Paragraph 4(b) (Declination of continued 
service) states Regular Army Soldiers serving on a second or subsequent enlistment 
who refuse to take action to meet military service remaining requirements by signing 
DA Form 4991–R pursuant to Army Regulation 601–280 may request voluntary 
separation.

4.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its 
consideration of each case with the presumption of administrative regularity.  The 
applicant has the burden of proving an error or injustice by a preponderance of the 
evidence.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20180007076


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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