ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20180015457 APPLICANT REQUESTS: * reinstatement of his Post 9/11 GI Bill Transfer of Education Benefits (TEB) to his dependents * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Affairs (VA) letter, dated 24 August 2018 * Georgetown College payment stub, dated 1 October 2018 * Post 9/11 GI Bill information sheet FACTS: 1. The applicant states in pertinent part: a. He understood, through a letter dated 24 August 2018, that a decision had been made to terminate his Post 9/11 GI Bill benefits. Obviously, he would like to appeal the decision for the benefit of his dependent children. He discussed this briefly with a VA representative who suggested that the program was partially an incentive program to stay in the Army. This was much to his surprise. This would not have crossed his mind because in the last few years of his duty in the Reserves, he was hearing more of reductions, consolidations and forced retirements. He (VA representative) asked if he was aware that there was a requirement to serve after signing up for the program. He said he had no idea. The eligibility was, served on active duty for at least 90 days after 10 September 2001. So he signed up. b. He and his family thought of it more of a THANK YOU program rather than an incentive program, so during the retirement process, he never even thought about it. Best he remembers, he heard about the Post 9/11 GI Bill program while he was already on active duty call-up overseas in a war zone. His Reserve command and the units that he worked with on active duty while overseas promoted the program as a benefit of his multiple deployments and encouraged him to apply - so again, he understood it as a benefit of his multiple deployments. In fact, he believed he procrastinated for a year or so after he first heard about it; because of so much going on in his life and he just procrastinated in general, probably like most Soldiers. Unfortunately his procrastination has now put his family in this awkward position. c. After more than an hour of searching online, he finally found the statement that refers to serving additional time. Towards the end, under transferring benefits, he now saw that it said "Generally, you must agree to serve four more years when transferring benefits." He certainly did not remember this during the online application and transfer process years ago. He hopes "Generally" means the Board would be willing to approve this request due to his 20+ years of honorable service. d. During his retirement process, no one mentioned the fact that he needed to check to make sure he had met the requirements of the Post 9/11 GI Bill. This included his direct command, higher command, retirement counseling, retirement checklist, the 20-Year Letter, pre-retirement seminar, etc. e. Please take into consideration he could have signed up for the program sooner. He understands that he missed the date by approximately 5 months. He guessed he signed up for the program in June of 2010 based upon the most recent letter, but certainly could have signed up 5 months sooner. 2. A review of the applicant’s service records shows the following on: * 3 April 2005 – having had prior commissioned service in the Army National Guard, the applicant was appointed as a Reserve commissioned officer and executed an oath of office * 10 September 2011 – 2 September 2012 – the applicant deployed in support of Operation Enduring Freedom and was honorably released from active duty on 27 October 2012 and transferred to his U.S. Army Reserve unit * 24 October 2013 – the U.S. Army Human Resources Command (HRC), issued the applicant a Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) notifying him he had completed the required years of qualifying Reserve service for retired pay * 27 January 2014 – Orders Number 14-027-00012, issued by 88th Regional Support Command, transferred the applicant to the Retired Reserve effective 15 February 2014 3. The applicant provides: * VA letter wherein the applicant’s dependent was informed an error had been made in his education benefits, and he was overpaid $24,566.07 because the applicant did not meet the obligation date of 28 June 2014, and he did not have to repay the debt because the VA erred in paying the benefits * Georgetown College payment stub showing the applicant’s dependent had a debt of $9,290.00 * Post 9/11 GI Bill information sheet wherein the applicant highlights the area discussing transfer of benefits to dependents 4. On 30 April 2019, HRC reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Incentive Program Manager opined that: a. The applicant had sufficient time to research the eligibility criteria for the TEB incentive, submit a TEB request and research the TEB service obligation requirements before he voluntarily retired on 15 February 2014. He should have obtained the TEB eligibility criteria through the Department of Defense (DOD) Directive-Type Memorandum 09-003 (dated 22 June 2009), the Department of the Army (DA) Post 911 GI Bill Policy Memorandum, paragraph 17a(4); DOD, DA, and HRC websites; and various briefings at the installation level. He failed to research the TEB incentive requirements accordingly. b. The applicant submitted a TEB request on 26 June 2010. His TEB request was approved on 28 June 2010 with a TEB service Obligation End Date (OED) of 28 June 2014 (should have been 25 June 2014) which was viewable in the upper left- hand corner of the TEB website. He could have requested TEB from 1 August 2009 to 15 February 2010 and would have incurred and fulfilled the 4-year TEB service obligation before his voluntary retirement date. Given his TEB approval and OED, he could have requested a later date to transfer to the U.S. Army Retired Reserve. c. The applicant's dependents are not eligible to receive TEB because he did not fulfill his service obligation. He transferred 12 months to his son, and 24 months to his step-son. On 27 February 2018, their office received an inquiry from the VA Regional Processing Office (RPO) St. Louis, MO to confirm the applicant did not fulfill the TEB service obligation. Their office confirmed he did not fulfill the TEB service obligation, so their office rejected his TEB request on 27 February 2018, and notified the VA RPO and him via email. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 5. On 31 May 2019, the applicant submitted a rebuttal to the advisory opinion that states in pertinent part, he still stood by the fact that he felt he did everything that a prudent person would do necessary to verify that funds were solid before he retired. It was not in his retirement packet. He asked at his retirement seminar. They had no idea how to verify. He checked the website at least twice. He was pretty sure that he even called to verify and let them know that he planned to retire - "transfer is good to go." He guessed he asked the wrong questions at every turn (again, he did not realize that this was an incentive, so he was not looking for that). He does not remember seeing a date in the upper corner, that would have red-flagged him. All he saw was that benefits were transferred. Yes, he "signed on," but at the time he had no plans to retire. "Service obligation end date would be determined" was probably confusing at the time he applied and was certainly long forgotten at his retirement 3 years later, especially after he got the "transfer of benefits complete" visual. 6. 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. 7. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: After review of the application and all evidence, the Board majority determined there is insufficient evidence to grant relief. Two Board members agreed with the Human Resources Command (HRC) advisory opinion that the applicant had numerous avenues to obtain information about the transfer of Post 9/11 GI Bill Education Benefits (TEB), that the TEB is a retention/recruiting incentive, not an entitlement, and that the applicant did not fulfill his TEB service obligation. The Board found no error in HRC’s denial of the applicant’s request to transfer his benefits. The dissenting Board member voted to grant relief stating that the applicant acted in good faith on the information that he was given during briefings and that the VA letter he received led him to believe that his sponsors were covered under the TEB that he had submitted on 26 June 2010. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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. 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 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 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. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015457 6 1