IN THE CASE OF: BOARD DATE: 5 May 2023 DOCKET NUMBER: AR20220010654 APPLICANT REQUESTS: * correction to the date of Transfer of Entitlement for Educational Benefits to reflect "21 July 2013," with a service obligation ending on "20 July 2017" * declare the applicant's military service obligation for the purposes of the transfer of his Post 9/11 G.I. Bill benefits to his son to be complete based on his continued service in the Reserve Retired Controlled Group APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement of the Case * Department of Veterans Affairs letter, 6 August 2018 * Email communication * Department of Defense Manpower Data Center (DMDC) letter, 8 December 2015 * Identification Card * Email communication * Memorandum – Subject: Transmittal of Notification of Eligibility for Retired Pay, 14 March 2016 * Memorandum – Subject: Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years), 14 March 2016 * National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG) Retirement Points History Statement),14 March 2016 * Summary of Parent Plus Loans FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20190009255 on 24 August 2021. 2. The applicant states through legal counsel that he is currently responsible to repay an educational debt in excess of $220,000.00 due to him being denied the entitlement to Transfer Educational benefits (TEB) to his son. He contests that his son's attendance at New York University was largely in part due to the benefits associated with the Post 9/11 G.I. Bill and the misrepresentations provided by ARNG counselors. a. In 2013, the applicant, while serving in the OHARNG, attempted to TEB under the Post 9/11 G.I. Bill to his son. Specifically, on 21 July 2013, the applicant initiated a DA Form 4187 (Personnel Action) requesting to transfer his educational benefits to his son. Due to his unit's inefficiency, this action took over a year to be realized. Counsel argues that the timeliness of this documented request is critical and without the original form, the Department of Veterans Affairs (VA) has incorrectly concluded that the action did not take place until 4 March 2014 with a service obligation end date of 3 March 2018. In 2018, he retired from the ARNG and assumed that his son's educational benefits would remain in effect. However, when his son applied for his educational benefits, he was denied because the applicant failed to fulfill the service obligation associated with the TEB. He argues that this action has resulted in an injustice and hardship which is the result of the OHARNG failure to properly process his records. The applicant was advised by an Education Support Technician at the National Guard Profession Education Center, if he was able to produce the original DA Form 4187 from July 2013, his service obligation could be adjusted accordingly. Unfortunately, after the applicant submitted the document in 2013, he lost visibility of it. In 2014, he was required to create another submission. b. On 14 March 2016, the applicant received his 20-year letter. He remained in the OHARNG until 31 December 2017, when he elected to be transferred into the Retired Reserve. He argues that his decision to retire at this point was based on the understanding that he would continue to acquire service credit (15 points per year) towards fulfilling his TEB service obligation. At the time of his transfer to the Retired Reserve, the applicant had 2 months and 3 days remaining on his TEB service obligation. There was nothing pressing the applicant to retire prior to fulfilling this obligation and had he not been misinformed; he would have continued his service to retain his educational benefits. 3. A review of the applicant's available service records reflects the following: a. After serving in the Active Component and the U.S. Army Reserve (USAR), on 26 September 2005, the applicant enlisted in the ARNG for a period of 6-years. b. On 29 July 2011, the applicant reenlisted/extended for 6 years resulting in a 25 March 2018 expiration term service date. c. On 14 March 2016, the applicant was issued a Notification of Eligibility for Retired Pay for Non-Regular Service (20-years) letter. d. On 11 December 2017, the OHARNG issued Orders Number 345-917 voluntarily discharging the applicant from the ARNG and transferring him to the Retired Reserve, effective 25 March 2018. e. On 31 December 2017, the applicant was discharged from the ARNG and transferred to the USAR Control Group (Retired). NGB Form 22 (Report of Separation and Record of Service) section 10 (Record of Service) reflects the following: * Net Service this Period – 12 years, 3 months, and 6 days * Prior Reserve Component Service – 8 years, 9 months, and 7 days * Prior Active Federal Service – 3 years and 10 months * Total Service for Pay – 24 years, 10 months, and 13 days 4. The applicant provides the following a: a. VA letter dated 6 August 2018, reflective of the applicant's son being advised that the VA was unable to approve his claim for educational benefits under the Post 9/11 G.I. Bill because the applicant failed to fulfill his service obligation. b. Email communication reflective of guidance concerning TEB under the Post 9/11 G.I. Bill being provided to the applicant on 11 July 2013. The applicant was advised to review the information and if he had not done so already, he needed to transfer his benefits. On 21 July 2013, the applicant provided notice that he would be submitting his DA Form 4187 by mail and inquired about the possibility of competing this action via a website. c. DMDC letter dated 8 December 2015, reflective of the applicant being advised that his request to TEB under the Post 9/11 G.I. Bill had been approved with a service obligation end date of 3 March 2018 transfer request date of 4 March 2014. d. Identification card reflective of the applicant being issued this on 5 January 2018. e. Email communication reflective of the applicant's attempts to locate the original (July 2013) DA Form 4187 that he submitted. The applicant's spouse was advised that unfortunately, the email traffic alone would be insufficient to support changing the date of the transfer within milConnect. This communication is provided in its entirety for the Boards review within the supporting documents. f. Memorandum – Subject: Transmittal of Notification of Eligibility for Retired Pay, 14 March 2016, reflective of the applicant being congratulated for completing 20 qualifying years of service certifying his eligibility to receive retired pay upon application at age 60. g. NGB Form 23B dated 14 March 2016, reflective of a summary of the applicant's earned points towards retirement. h. Summary of Parent Plus Loans, reflective of the cumulative loan balance of related to 5 loans = $220, 901.00. 5. On 24 August 2021, Docket Number AR20190009255 the Board determined that relief was not warranted. Based upon review of the available documentation, the Board found evidence that the applicant was on notice in 2015 that his service obligation ended 3 March 2018; he did not complete that service obligation. The Board found insufficient evidence of mitigation error related to his transfer to the Retired Reserve. Based upon a preponderance of evidence, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant's eligibility to transfer educational benefits. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered the applicant’s contentions, military record and regulatory guidance. The Board agreed the applicant fully intended to transfer his post 9/11 educational benefits in accordance with applicable law. However, the Board agreed that his National Guard unit did not timely initiate the transfer and, at no fault of his own, he was determined ineligible. 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 an amendment of the ABCMR’s decision in Docket Number AR20190009255 dated 24 August 2021. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed and the Army approved, in a timely manner, his application to transfer his unused education benefits to his eligible dependent(s), and that all other program eligibility criteria were met, in accordance with the Transfer of Education Benefits provisions of the Post-9/11 GI Bill. 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 section 3319 (Authority to Transfer Unused Education Benefits to Family Members) states that an individual transferring an entitlement to educational assistance under this section shall designate the dependent or dependents to whom such entitlement is being transferred, designate the number of months of such entitlement to be transferred to each such dependent and specify the period for which the transfer shall be effective for each dependent. An individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed. 2. On 10 July 2009, the Army released the Post 9/11 G.I. Bill Implementation Policy that identified and established responsibilities, eligibility criteria, benefits, and detailed guidance on the administration of the program. a. Transferability of Unused Benefits to Dependents. For the purposes of transferability, Armed Forces include all active-duty service and all Selected Reserve service regardless of branch of service or component Soldiers whose request to transfer benefits is approved will incur an additional service obligation in accordance with the below policy. Soldiers are expected to serve the additional service obligation. b. Eligibility. (1) Any Soldier of the Armed Forces who fulfills Post 9/11 GI Bill eligibility requirements and who, at the time of the approval of the Soldier's request to transfer entitlement to educational assistance does not have an adverse action flag, is eligible for the Post 9/11 GI Bill, and (2) Has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years from the date of request, regardless of the number of months transferred, or (3) Has at least 10 years of service in the Armed Forces on the date of election and if cannot commit to 4 additional years due to a Retention Control Point (RCP) or Mandatory Retirement Date (MRD), must commit to serve for the maximum amount of time allowed by either RCP or MRD as of the date of request, regardless of the number of months transferred. (4) Is or will become retirement eligible during the period from 1 August 2009, through 1 August 2013 and agrees to serve the additional period, if any, specified below. For the purposes of this paragraph, a Soldier is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed under title 10 U.S.C Section 12732. Use which ever computation establishes 20 years regardless of which component the Soldier is in at the time of electing to transfer benefits. * Soldiers eligible for retirement on or before 1 August 2009, no additional service is required * Soldiers with an approved retirement date on or after 1 September 2009, but on or before 1 June 2010, no additional service requirement * Soldiers who attain 20 years of service on or after 2 August 2009 and before 2 August 2010, one year of additional service from the date of request is required * Soldiers who attain 20 years of service on or after 2 August 2010 and before 2 August 2011, two years of additional service from the date of request are required * Soldiers who attain 20 years of service on or after 2 August 2011, and before 2 August 2012, three years of additional service from the date of request are required c. Procedures. All requests and transactions will be completed through the Transferability of Education Benefits Web application. d. Failure to Complete Service Agreement. Except as provided below, if a Soldier transferring entitlement under this section fails to complete the service agreed to by the Soldier in accordance with the terms of the agreement of the Soldier under that paragraph, the amount of any transferred entitlement that is used by a dependent of the Soldier as of the date of such failure shall be treated as an overpayment of educational assistance and will be subject to collection by Department of Veterans Affairs (DVA.) Exceptions: * The death of the Soldier * Discharge or release from active duty for a medical condition which pre- existed the service of the Soldier and was not service connected * Discharge or release from active duty for hardship * Discharge or release from active duty for a physical or mental condition not a disability and that did not result from the Soldier's own willful misconduct, but did interfere with the performance of duty * The DVA has agreed to not recoup paid benefits or revoke transferred benefits for Soldiers who have agreed to an additional service commitment and who did not complete the agreed upon service due to separation for medical disability or through a service force shaping initiative e. The policy further states the Secretaries of the Military Departments will provide active-duty participants and members of the Reserve Components pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill; the counseling will be documented and maintained in records for individuals who receive supplemental educational assistance under Public Law 110-252, section 3316. f. During the initial implementation of this program, many Soldiers in all grades were confused as to their eligibility and/or the application process. This confusion was exacerbated by the heavy use of the DOD website and the lack of proper log-in credentials for those who may have signed out on transition leave during the 60 to 90 days of the program implementation. In addition, officials at some education centers may have also been confused with regard to the implementation instructions and may not have conducted proper counseling. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010654 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1