ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 November 2021 DOCKET NUMBER: AR20210006552 APPLICANT REQUESTS: reinstatement of his Post 9/11 GI Bill Transfer of Education Benefits (TEB) to his children. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Joint Force Headquarters, Oregon Army National Guard Memorandum, Subject: letter of Instruction – Active Service Retirement, dated 10 July 2016 * Orders Number 216-026 issued by Joint Force Headquarters, Oregon Army National Guard, Office of the Adjutant General, dated 3 August 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 31 January 2017 * NGB Form 22 (Report of Separation and Record of Service), dated 31 January 2017 * Department of Veterans Affairs (VA) Post 9/11 GI Bill education benefits letter, dated 9 July 2020 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 that his Post 9/11 GI Bill should be reinstated to his daughters. a. He was informed by the Army National Guard that he completed his service obligation and that his retirement would satisfy his Post 9/11 GI Bill transfer requirement. There were two factors when choosing a retirement date with his General Officer and Joint Chiefs of Staff. First was his mental health. From 2010-2016, he suffered from high anxiety, anger, and memory issues. He completed all duties with a high degree of competence, but not without fear of a heart attack. His condition was misdiagnosed as post-traumatic stress disorder at the time, but was later found to be a thyroid issue possibly caused by exposure during his Iraq deployment. Second, he was advised by the Joint Base Lewis McChord Transition Assistance Program and the out- processing team from the Oregon National Guard that he completed his service obligation for promotion. b. As early as March 2020, he was informed by a VA Customer Service Representative that the months for eligibility transferred to each of his children were ready for use. In July 2020, his daughter applied to a university and the VA to use his Post 9/11 GI Bill, but the benefits were denied. His daughters are enrolled at the University of Oregon and Lane Community College and are relying on his Post 9/11 GI Bill benefits. c. If he had been advised correctly, there is no doubt that he would have completed six more months of service. He has 22 plus years of service and is fully fit physically and mentally to be a retiree recall for the next year to complete his obligation. He requests that the Board reinstate his Post 9/11 GI Bill TEB or activate him for the next year to complete his obligation; which is critical for his family's education. 3. The applicant's service record shows: a. On 17 April 2002, having prior honorable served in the U.S. Army Reserve and Regular Army, the applicant enlisted in the Army National Guard (ARNG) and served until his retirement. b. Orders Number 033-002 issued by Joint Force Headquarters, Oregon ARNG, dated 2 February 2017, shows the applicant honorably completed 20 years of service and was transferred to the Retired Reserve effective 31 January 2017. 4. The applicant provides: a. Joint Force Headquarters, Oregon Army National Guard Memorandum, Subject: letter of Instruction –Active Service Retirement, dated 10 July 2016, showing the applicant's retirement from active service was approved on 31 January 2017. b. Orders Number 216-026, dated 3 August 2016, showing the applicant was released from active duty and place on the retired list effective 1 February 2017. c. On 31 January 2017, the applicant was honorably retired. DD Form 214 for this period of service shows in: (1) Block 12c (Net Active Service This Period) – 6 years, 8 months, and 16 days. (2) Block 12d (Total Prior Active Service) – 14 years, 8 months, and 8 days. (3) Block 28 (Narrative Reason for Separation) – Sufficient Service for Retirement. d. NGB Form 22, dated 31 January 2017, showing in Block 10e (Total Service for Retired Pay) – 22 years, 7 months, and 4 days. e. VA Post 9/11 GI Bill education benefits letter, dated 9 July 2020, showing the applicant's dependent claim for his Post 9/11 GI Bill benefits were denied. VA records showed the applicant did not meet his obligated service requirement for the Transfer of Entitlement program. 5. In the processing of this case, an advisory opinion was obtained from the National Guard Bureau Chief, Special Actions Branch on 21 May 2021. The advisory official opined he recommended approval of the applicant's request. This opinion was coordinated with the Army National Guard Education Services office. The Oregon Army National Guard did not provide input on this case. The advisory opinion states in pertinent part: a. The applicant served in the Regular Army from 26 October 1994 to 22 July 2001, then served in the Army National Guard from 18 April 2002 to 31 January 2017. He was retired from the Army National Guard with 22 years, 3 months, and 5 days of service. He completed a qualifying period of service for the Post 9/11 GI Bill as a member of the Active Guard/Reserves from 15 May 2010 to 31 January 2017. On 18 July 2013, the applicant transferred 18 months of his Post 9/11 GI Bill to his daughter, I___; 16 months to his daughter, C___; and 1 months to his daughter, S___. b. The applicant had a 4 years’ military service obligation with an obligation end date of 17 July 2017. The applicant was advised by the Joint Base Lewis McChord Transition Team and the Army National Guard that his TEB had been completed with all remaining service obligations satisfied at the time he engaged in pre-retirement procedures prior to his retirement on 31 January 2017. c. Base on erroneous information, the applicant made the decision to enter the Retired Reserves with this understanding. Unfortunately, the applicant entered the Retired Reserves approximately 6 months prior to his obligation end date. d. Transfer of Post 9/11 GI Bill benefits to dependents was established to promote retention. DTM 09-003, dated 22 June 2009, addresses transferability of unused education benefits to family members. Section 3, paragraph a(1) states that an individual may transfer the entitlement provided he or she has at least 6 years of service in the Military Services (active duty or Selected Reserve), National Oceanic and Atmospheric Administration (NOAA) Corps, or Public Health Service (PHS) on the date of approval and agrees to serve 4 additional years in the Military Services, NOAA Corps, or PHS from the date of election. e. While the applicant did enter into an agreement with Oregon Army National Guard to serve an additional 4-year military service obligation, he relied on the retirement subject matter experts of JBLM and the Oregon Army National Guard in verifying that he had completed his obligation and the TEB to his daughters was satisfied. It is reasonable to believe that if the applicant had been advised of his remaining 6 months, he would have taken the appropriate measures to ensure he did not separate before the military service obligation was fulfilled. This office recommends waiver of the Soldier’s remaining military service obligation in light of the resulting hardship to his children who have been denied use of the benefit, and his honorable 22 years of military service. f. The advisory opinion was provided to the applicant to afford him the opportunity to respond to its content. He did not respond. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicants petition available military records, and National Guard Bureau Chief, Special Actions Branch advisory, the Board concurred with the advising official to grant approval, finding the applicant was provided erroneous information and the applicant made the decision to enter the Retired Reserves with this understanding. The applicant, unfortunately entered the Retired Reserves approximately 6 months prior to his obligation end date. 2. The Board found the applicant served in the Regular Army from 26 October 1994 to 22 July 2001, then served in the Army National Guard from 18 April 2002 to 31 January 2017. He was retired from the Army National Guard with 22 years, 3 months, and 5 days of service. He completed a qualifying period of service for the Post 9/11 GI Bill as a member of the Active Guard/Reserves from 15 May 2010 to 31 January 2017. On 18 July 2013, the applicant transferred 18 months of his Post 9/11 GI Bill to his daughter, I___; 16 months to his daughter, C___; and 1 months to his daughter, S___. Based on this, the Board granted relief to reinstatement the applicant’s Post 9/11 GI Bill Transfer of Education Benefits (TEB) to his children. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XX XXX XXX 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 reinstatement of the applicant’s Post 9/11 GI Bill Transfer of Education Benefits (TEB) to his children. 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): N/A 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. Public Law 110-252, as amended by Public Law 111-377, identified the qualifications to receive the Post-9/11 GI Bill, one of which was that the service member must have performed active service on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill. Public Law 110-252 established legal requirements on the transferability of unused benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 3. On 22 June 2009, the Department of Defense (DOD) established the criteria for eligibility and transfer of unused education benefits to eligible family members. The policy limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill. 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. b. Has at least 10 years of service in the Armed Forces (active duty and/or service in the 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. c. Is or becomes retirement eligible during the period from 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// ABCMR Record of Proceedings (cont) AR20210006552 1 1