BOARD DATE: 4 February 2020 DOCKET NUMBER: AR20180010491 APPLICANT REQUESTS: Correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her narrative reason for separation as "Hardship" instead of "Parenthood." She further requests a waiver of her unfulfilled service obligation under the Transfer of Education Benefits (TEB) provisions of the Post-9/11 GI Bill. 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), dated 24 July 2018, with self-authored statement dated 26 June 2018 * DA Form 4856 (Developmental Counseling Form), dated 8 April 2013 * 11 pages of separation processing documents * Tab 1 – enlisted record brief, dated 14 May 2013 * Tab 2 – DA Form 4856 with Family Care Plan Checklist, dated 14 May 2013 * Tab 3 – medical documents (6-pages) * Tab 4 – DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 13 June 2013 * DD Form 214, for the period ending 25 October 2013 * a letter sent to the Department of Veterans Affairs (VA), dated 2 September 2016, subject: Notice of Disagreement for Post 9/11 GI Bill Benefits under the Transfer of Entitlement (TOE) Program… * letter from the applicant’s daughter to VA, dated 5 September 2016 * VA Decision Letter, dated 6 February 2017 * her daughter’s VA Form 5655 (Financial Status Report), dated 19 April 2017 * VA Letter, dated 14 August 2017, with Statement of the Case * a letter from the Office of the Deputy Chief of Staff, G-1, , dated 9 July 2017 * character reference letter, dated 21 May 2018 * summary of regulatory and statutory laws FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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. She did not refuse to deploy, make a permanent change of station (PCS) move, or commit any misconduct. Her youngest daughter was suffering from an acute case of post-traumatic stress disorder (PTSD) after witnessing a traumatic event, and as a result, she asked for a deferment from a six week military course so that she could properly care for her. She had a valid family care plan and had no desire to leave the Army. b. Due to her daughter’s sudden and acute condition, she felt it was not in her best interest to leave her at the time. She believed this to be a temporary situation; however, her chain of command determined the nature of the hardship was more permanent and denied the deferment. She wanted to continue to serve her country and was prohibited from doing so through no fault of her own. Her current discharge does not accurately reflect the nature of the hardship used to justify the involuntary termination of her contract prior to its end date. 3. In a provided self-authored statement, the applicant noted: * her family care plan was intact and valid, she did not refuse to attend class * she needed some time to handle the situation and attending class would have created a severe and unnecessary hardship * she had no choice but to refuse to activate her family care plan * as a result of her early discharge, the VA retroactively ruled her middle daughter ineligible for transfer of her GI Bill after she had already exhausted the benefit * her daughter is now facing substantial financial hardship due to the ruling * she signed the four-year extension in good faith, with every intention of remaining on active duty until she was retirement eligible * her daughter used the benefit in good faith * during her out-processing she was informed that none of her benefits would be affected 4. The applicant enlisted in the Regular Army on 8 November 2001. She served in Iraq from 10 January 2005 to 31 July 2005. She reenlisted in the Regular Army on 24 February 2006 and again on 27 June 2007. She was promoted to the rank/grade of staff sergeant/E-6 on 1 March 2010. 5. A DA Form 4856, dated 8 April 2013, shows the applicant was counseled in regards to her inability to activate a family care plan. The applicant stated that her daughter had witnessed a traumatic event and had suffered behavioral and emotional issues. As such, leaving her daughter with an unknown person was not an option at the time. The applicant was informed that should she fail to update a valid family care plan, within 30 days, she would be subject to administrative action or separation from service. 6. A DA Form 4856, dated 14 May 2013, shows the applicant acknowledged that she could no longer provide a family care plan. She waived her option for an additional 30 day grace period and stated that she had exhausted all means to alleviate the issue. 7. The applicant's immediate commander notified the applicant of his intent to initiate separation actions against her under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 5-8, due to parenthood. 8. The applicant acknowledged receipt of the notification memorandum on 29 July 2013, and further acknowledged that she had been advised by counsel of the basis for the contemplated action to separate her under the provisions of Army Regulation 635-200, Chapter 5-8, and its effects; the rights available to her; and the effect of any action taken by her in waiving her rights. She elected not to submit statements in her own behalf. 9. The applicant’s immediate commander recommended her separation under the provisions of Army Regulation 635-200, paragraph 5-8. The separation authority approved the recommended discharge and directed that her service be characterized as honorable. 10. The applicant was honorably discharged on 25 October 2013. Her DD Form 214 confirms she was separated under the provisions of Army Regulation 635-200, paragraph 5-8. Item 26 (Separation Code) contains the entry "JDG." Item 28 (Narrative Reason for Separation) contains the entry "Parenthood." 11. 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 unused education benefits to a dependent is considered an incentive, not a benefit. The transfer 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. Therefore, the incentive requires the Soldier to commit and fulfill additional service, in most cases, from the TEB request date. 12. A printout from the MilConnect website, showing the applicant acknowledged the TEB eligibility criteria and agreed to serve in the Armed Forces for the period required, is not available for review with this case. 13. A letter to the applicant from the Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army, dated 9 July 2017, noted that she submitted a request for TEB on 29 April 2011, which was approved with a service obligation end date of 28 April 2015. Based on the legal opinion of the Judge Advocate General, the four-year service obligation is required by statute and cannot be waived. As a result, the debt incurred for overpayment of benefits is a debt to the VA and cannot be forgiven by the Army. The applicant was advised that her only recourse was to request adjudication through the ABCMR. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, her record of service, the separation packet and counselling, her statement regarding the inability to provide a family care plan and the reason for her separation. The Board considered the applicant’s daughter’s statement specific to the TEB and the debt incurred as a result of VA denial of benefits and recoupment. The Board found the applicant’s statement compelling as to the reason for her requested delay for training and the actions that led to her involuntary separation. The Board found that the applicant had taken action to retain eligibility for transfer of education benefits to her daughter. Based on a preponderance of evidence, the Board determined that the narrative reason for her separation required correction and that she should retain eligibility for the previously executed transfer of education benefits to her dependent. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 the evidence presented is 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; - Amending the DD Form 214 for the period of service ending 25 October 2013 to reflect in item 25 (Separation Authority) – “AR 635-200, CH 6”; item 26 (Separation Code) – “KDB”, and; item 28 (Narrative Reason for Separation) – “Hardship”. - Show that she remained eligible to transfer education benefits to her dependents after her hardship separation. 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. 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. Title 38, USC, Section 3319(i)(2), states that 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. 3. The Department of Defense (DoD) established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states 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: 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 31 July 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. 4. DoD Instruction 1341.13, paragraph 3g, states that if an individual transferring entitlement under this section fails to complete the agreed to service obligation, the amount of any transferred entitlement that is used as of the date of such failure shall be treated as an overpayment of educational assistance and shall be subject to collection by the VA. 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) indicates the SPD code "JDG" is reflective of an involuntary separation under the provisions of Army Regulation 635-200, paragraph 5-8, for parenthood. 6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-8 provides for the involuntary separation of Soldiers due to parenthood. It states, Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities and that notification procedures will be used. b. Paragraph 6-3(b) states that Soldiers on active duty may be discharged or released because of genuine dependency or hardship. Hardship exists when in circumstances not involving death or disability of a member of the Soldier’s immediate family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180010491 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180010491 7 ABCMR Record of Proceedings (cont) AR20180010491 5