IN THE CASE OF: BOARD DATE: 23 November 2021 DOCKET NUMBER: AR20210006944 APPLICANT REQUESTS: reinstatement of his Post 9/11 GI Bill Transfer of Education Benefits (TEB) to his daughter. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement for summary of facts and explanation of injustice * Headquarters (HQs), 99th Readiness Division (RD) Memorandum, dated 17 October 2018, Subject: Letter of Instruction (LOI) for 99th RD Pre-Post Retirement Seminar on 15 December 2018, location Newark Armed Forces Reserve Center, 1001 Ogletown Road, Newark, DE 19711 * HQs, 99th RD Memorandum, dated 13 March 2019, Subject: LOI for 99th RD Pre-Retirement Seminar on 18 May 2019, Location: fort Hamilton Armed Forces Reserve Center, 212 General Lee Ave, Fort Hamilton, NY * Department of Defense (DOD) Manpower Data Center letter, dated 1 July 2020 * Norfolk State University Request for Initial Enrollment Certification * Department of Veterans Affairs (VA) letter, dated 27 July 2020 * Power of Attorney, dated 9 July 2021 * The Law Offices of A-, LLC letter, dated 20 July 2021 FACTS: 1. The applicant states in effect, that he requests that the Board overturn the denial of his eligibility to TEB to his daughter, D-. The denial of eligibility to TEB to his daughter has caused him undue hardship because of the lack of reasonable notice and the opportunity to respond. The applicant relied on the information that was directly communicated to him by Army personnel which was detrimental to his case and the insufficient time to appeal caused irreparable harm to his daughter which was unjust and inequitable. 2. A review of the applicant's service record shows: a. With prior enlisted service, the applicant was appointed a Regular Army (RA) commissioned officer on 13 December 1991. b. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty on 5 January 1992. The applicant was honorably released from active duty on 1 December 1997 and assigned to the U.S. Army Reserve (USAR) Troop Program Unit (TPU). The applicant completed 5 years, 10 months, and 27 days of active service. c. On 18 June 2013, Orders Number 13-169-00048, issued by HQs, 99th Regional Support Command (RSC), the applicant was assigned to the USAR Control Group (Retired Reserve) effective 15 August 2013 for completion of 20 or more years of qualifying service for Retired Pay at Age 60. 3. The applicant provides: a. Summary of facts and explanation of injustice, dated 3 August 2020, which states that his daughter was scheduled to attend college on 22 August 2020, she would not be able to attend if the previously certified TEB was not dispersed to cover the balance of her tuition and fees. The applicant's daughter was dis-enrolled on 4 September 2020 and lost her additional aid due to failing to pay the outstanding balance that was owed in the fall of 2020. She was also required to immediately pay back already dispersed student loans. The applicant's Post 9/11 GI Bill educational benefits were certified and approved between the period of December 2018 through July 2020. On 29 July 2020, the applicant was notified telephonically that the TEB was being denied due to the fact that he did not fulfill a 4-year service obligation after he transferred his educational benefits to his daughter. The denial of the previously approved TEB to his daughter has caused the applicant's daughter an undue hardship as the 6-month appeal process will cause irreparable harm and a detriment to his daughter's life which will be permanently negatively altered. On 1 July 2020, the applicant was notified via a letter that a non-communicated technicality prevented him from TEB did not provide him with a reasonable notice or the opportunity to rectify the matter before his daughter was due to report to school on 22 August 2020. The letter was the first time that applicant heard that he failed to fulfill a 4-year service obligation in order to TEB. The applicant was informed that the appeal process could take 6-months, which was an inadequate time before his daughter would be disenrolled from school. During the period of March 2012 through May 2019, the applicant relied on the direct communication and guidance that was received during retirement briefings from Army personnel in regards to the transfer of his Post 9/11 educational benefits during the retirement process. On 27 July 2020, the applicant received written confirmation that 12-months of his educational benefits were transferred to his daughter which was in conflict with the letter dated 1 July 2020 that stated he was not eligible due to failure to fulfill a 4-year service obligation. It is unfair and unreasonable to punish or hold him accountable for misinformation that was provided to him telephonically, during retirement briefings, or on websites. On occasions, the applicant was advised by customer service representatives to ignore the incorrect information on the websites. Much of the current information that is on the military website regarding the Post 9/11 GI benefits were posted after he received inaccurate information on 23 June 2013. b. HQs, 99th RD Memorandum, dated 17 October 2018, Subject: LOI for 99th RD Pre-Post Retirement Seminar on 15 December 2018 that states the purpose of expanding retirement services support to ensure retired Soldiers, Soldiers, and their Families receive information and referral on benefits and entitlements including VA, TRICARE medical and dental, survivor benefits, retired pay, and other sources. The seminar was open to all Reserve and National Guard (NG) Soldiers with more than 15-years of qualified service. c. HQs, 99th RD Memorandum, dated 13 March 2019, Subject: LOI for 99th RD Pre-Retirement Seminar on 18 May 2019 that states the purpose of expanding retirement services support to ensure retired Soldiers, Soldiers, and their Families receive information and referral on benefits and entitlements including VA, TRICARE medical and dental, survivor benefits, retired pay, and other sources. The seminar was open to all Reserve and National Guard (NG) Soldiers with more than 15-years of qualified service. d. DOD Manpower Data Center letter, dated 1 July 2020, that informed the applicant that the transfer of his unused Post 9/11 GI Bill to his immediate family was approved. It was imperative that the applicant remain in the Armed Forces until the end date of his service obligation. Should he fail to complete the service obligation any transferred entitlements used as of the date of the failure would be treated as an overpayment of educational benefits which shall be collected by the VA. The applicant requested the transfer on 27 June 2013 which was approved on 28 June 2013. The applicant incurred a service obligation until 26 June 2017. e. Norfolk State University request for initial enrollment certification packet for the applicant's daughter, D-, which shows that she was requesting enrollment utilizing the Post 9/11 GI bill as a new student in an undergraduate program for Fine Arts, specializing in education. The applicant was dated 10 July 2020. f. VA letter, dated 27 July 2020, certifies the applicant's eligibility for 100 percent of the Post 9/11 GI bill benefits for 19 months and 26 days of full time benefits and he has until 30 September 2027 to utilize the benefits. The applicant was also eligible for 100 percent of the Yellow Ribbon Program benefits for additional financial assistance for tuition and fess that exceed the in-state maximum under the Post 9/11 GI bill program. g. The applicant states that as of 9 July 2021, his wife and his attorney were authorized to speak, write, and communicate on his behalf. h. The Law Offices of A-, LLC letter, dated 20 July 2021, states that the law firms will represent the applicant regarding his application to the Board for the TEB to his daughter. The applicant's attorney requests that the Board make an exception and make an immediate determination regarding the case due to the financial hardship the applicant would have to endure if his daughter did not receive the full benefits from the transfer of his educational benefits. 4. On 3 May 2021, in the processing of this case, an advisory was received from the U.S. Army Human Resources Command (HRC). The advisory official recommends disapproval of the applicant's request to TEB with the waiver of the service obligation. The recommendation not to grant relief is due to: a. The Post 9/11 GI Bill is a benefit to the Soldier whereas the TEB to a dependent is an incentive for the express purpose of recruitment and retention. The incentive requires a commitment to fulfill additional service in most cases from the TEB request date. b. The Post 9/11 GI Bill benefit and the TEB incentive does not require a formal one-on-one counseling, group counseling, nor a reduction in pay to make oneself eligible. The Soldier acquires TEB eligibility through qualified service after 10 September 2001 and elect's benefits through the VA and fulfilling the TEB service obligation. c. On the TEB website, the Soldier must acknowledge nine statements before submitting the TEB request, two of the statements specifically pertain to the agreement to serve the TEB service obligation and possible overpayment if the TEB service obligation was not fulfilled. d. The applicant had sufficient time to research the eligibility criteria, submit the request, and research the TEB service obligation before he voluntarily retired on 15 August 2013. The applicant submitted the TEB request on 27 June 2013, TEB was approved on 28 June 2013 with a TEB service obligation to end on 26 June 2017. e. The applicant's dependents are not eligible to receive the TEB because he failed to fulfill the service obligation. On 1 July 2020, the applicant changed the amount of months transferred to D- from 1-month to 12-months. f. The applicant provided a Certificate of Eligibility (COE) from the VA that was dated 27 July 2020 that stated his eligibility for the Post 9/11 GI Bill, not the eligibility of his dependents. The VA Regional Processing Office in Buffalo, NY confirmed that the applicant's daughter applied for COE on 15 July 2020 and was denied on 30 July 2020 because the applicant failed to fulfill his service obligation. g. The applicant made himself ineligible for TEB when he requested transfer to the USAR Retired Reserve effective 15 August 2013 before fulfillment of his service obligation. 5. On 7 May 2021, a copy of the advisory was provided to the applicant for his opportunity to submit comments. The applicant has failed to submit a rebuttal in his own behalf; however, statements from his counsel and an Education Service Support representative have been submitted in his behalf and the Post 9/11 implementation policy. a. The Law Offices of A-, LLC letter, dated 19 May 2021, which states in part, that the applicant requests that the Board reject the report from HRC and to overturn the decision to deny the TEB to his dependents. The Board should reject the report from HRC to recommend disapproval because it was arbitrary, capricious, unsupported by substantial evidence and in violation of the Administrative Procedure Act (APA). The APA standard must be applied when there are issues regarding the application of procedural regulations as well as procedural fairness. HRC failed to follow the binding precedent of Thompson v U.S. and failed to provide a legitimate reason for departing from it. HRC's reasoning should be rejected pursuant to Haselwander v McHugh, wherein the court reviewed the Board decision denying the request to correct his medical records to demonstrate that he was wounded and therefore qualified for receipt of the Purple Heart. Despite uncontested and credible evidence of his wounds in his records the Board denied the request. Similarly, despite the uncontested and credible evidence that the applicant retired after 25-years of service and transferred his educational benefits to his dependents prior to departing the service, HRC denied the request. HRC acknowledges that the applicant submitted the TEB request on 27 June 2013 and it was approved on 28 June of the same year. The applicant disputes that there was a service obligation requirement because during the retirement briefing he was instructed to submit the TEB request and was advised that there was no additional service obligation required for the eligibility of his dependents to received his educational benefits. Marta v Witley on 31 March 2021, it was indicated that Marta did not know about the TEB or restrictions because the Army failed to provide mandatory educational benefits counseling upon retirement. The Army provided no evidence to contradict the lack of knowledge. The court found that it was unreasonable for the Board to have denied the claim on the absence of any attempt to make a transfer. The applicant made the attempt to TEB to his dependents while in an active status, yet HRC recommends no administrative relief because the applicant had sufficient time to research the eligibility criteria for the TEB incentive, submit the request, and research the TEB service obligation before he voluntarily retired effective 15 August 2013. HRC's reasoning was both faulty and unreasonable as the Army told the applicant that there was no additional service obligation, but HRC recommends disapproval of the TEB because the applicant failed to fulfill an alleged 4-year service obligation after he had already served 25-years. The applicant relied on the information that was provided to him by Army personnel during various retirement briefings and he did not receive an individual pre-separation counseling, but attending a group setting counseling on benefits. The applicant was given false information by reliable sources, so when the ignorance is a direct failure to educate, the Soldier cannot be blamed and is entitled to relief. b. Statement from a Veterans Education Success representative in support of the applicant states in part, that the Veterans Education Success works to advance the higher education for veterans and military families and to protect the integrity and promise of the GI Bill and other federal education programs. It appears that the applicant did not receive the information during his retirement briefings that there would be a service obligation in order to TEB to his dependents. It also appears that everything that he was told in person conflicted with everything that was in written policy. According to the documentation the applicate signed when he submitted the request to TEB to his dependents, he did not agree to an additional 4-year service obligation. The applicant was told that the website displayed the date on which he should retire in order to secure his TEB; however, when the applicant called the website representative in August of 2020, the representative was unable to locate the date. In Thompson v US, the court held that although ignorance of policy is not a complete defense to enforcement of the policy, when ignorance is a direct result of a failure to educate, the Soldier cannot be blamed and is entitled to relief. The applicant did not know about the 4-year service obligation. The applicant could have served the additional years if he had been made aware of a service obligation before he retired. However, now that he is retired, he cannot do anything to rectify the situation. c. Post 9/11 GI Bill Implementation Policy document that shows that it is the responsibility of several persons and entities to communicate policies, information, and guidance regarding benefits and entitlements to personnel eligible for retirement. Maintain current educational benefits regulations and other related source materials and provide counseling on the Post 9/11 GI Bill entitlements. The eligibility criteria for the Post 9/11 GI Bill for Soldiers to service on active duty on or after 11 September 2001 for at least 30 continuous days with a discharge due to a service connected disability. Entitlements expire 15-years from the last date of discharge or release from active duty. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board considered the evidence, the advisory opinion, and the rebuttal submitted by the applicant. Board members noted that the applicant requested TEB on 27 June 2013 and this was approved on 28 June 2013 with a 4-year obligation through 26 June 2017. He voluntarily retired on 15 August 2013. He did not fulfill the intent of the TEB. He made himself ineligible for TEB when he requested transfer to the USAR Retired Reserve effective 15 August 2013 before fulfillment of his service obligation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: 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 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 of Public Law 110-252, limits eligibility to transfer unused benefits to those members of the armed forces who are serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 2. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. 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: 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 1 August 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. d. A Soldier must also agree to serve the prescribed Active Duty Service Obligation based on the time in service the Soldier had on 1 August 2009. 3. The policy further states the Secretaries of the Military Departments will provide active duty participants and members of the Reserve components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly and maintain records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. 4. Department of Defense Instructions 1341.13 (Post 9/11 GI Bill), establishes policy, assigns responsibilities, and prescribes procedures for implementing DoD authorities and responsibilities for chapter 33 of Title 38, United States Code (U.S.C.) (also known and hereafter referred to as the Post-9/11 GI Bill) (Reference (b)). Enclosure 3: paragraph 3 (Transferability of unused education benefits to family members), subject to the provisions of this enclosure, the Secretary concerned, to promote recruitment and retention in the Uniformed Services, may permit an individual eligible for Post-9/11 GI Bill educational assistance to elect to transfer to one or more of his or her family members all or a portion of his or her entitlement to such assistance. Subparagraph g (2) Subparagraph 3.g (1) of this enclosure shall not apply to an individual who fails to complete service agreement due to: reasons listed in paragraphs 3.g (2) (a) through (h) of this enclosure. The Service member will be considered to have completed his or her previously approved TEB related service agreement upon: * his or her death * discharge or release from active duty or the Selected Reserve, with an honorable discharge, for a medical condition that pre-existed his or her service and was not service-connected * discharge or release from active duty or the Selected Reserve for hardship with an honorable discharge * discharge or release from active duty or the Selected Reserve, with an honorable discharge, 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 * discharge or release from active duty or the Selected Reserve, with an honorable discharge, for injury or disability found to be in the line of duty based on results of Medical Evaluation Board and Disability Evaluation System processing where a member was found unfit for duty (with a medical separation or retirement order) * discharge or release from active duty or the Selected Reserve, with an honorable discharge, due to reduction in force or force shaping initiative * discharge or release from active duty or the Selected Reserve, with an honorable discharge, due to twice failing to be selected for promotion as a commissioned officer on active duty or Selected Reserve * failure to be selected for promotion as enlisted Service member and being separated under Service high-year tenure or retention control point unless separated at high-year tenure or retention control point subsequent to reduction in rank through non-judicial punishment or court martial //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210006944 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1