IN THE CASE OF: BOARD DATE: 31 January 2023 DOCKET NUMBER: AR20220003468 APPLICANT REQUESTS: * correction of active-duty service dates resulting in entitlement to educational benefits * debt remission in the amount of $6,381.78 APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 325-030, 21 November 2001 * Orders Number 087-059, 28 March 2002 * Orders Number 178-380, 27 June 2002 * Orders Number 071-332, 12 March 2003 * Orders Number 273-185, 30 September 2003 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), 29 November 2005 * Email communication * U.S. Department of the Treasury letter, 24 February 2022 FACTS: 1. The applicant did not file within the 3-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 in pertinent part that she was denied entitlement to educational benefits due to her period of active duty being incorrect. She contests that while on active duty or having previously served on active duty, she requested educational assistance. Her request was denied because of her incorrect service dates reflected within the system. This error resulted in a debt that she was required to pay. However, she disputes the accuracy of the information utilized to deem her responsible for repayment noting that she never received a denial of educational benefits letter. She argues that she was advised that her request for benefits was approved and at that time she assumed that she was certifying those benefits rather than the Montgomery G.I. Bill. She was informed recently that this is what happened. 2. A review of the applicant's available service records reflects the following: a. On 30 November 1999, the applicant enlisted in the Army National Guard (ARNG) to serve as an 88M (Motor Transport Operator). b. On 29 November 2005, the applicant was released from the ARNG and transferred into the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR)) to serve the remaining 2 years if her enlistment contract. 3. The applicant provides the following a: a. Orders Number 325-030 dated 21 November 2001, reflective of the applicant being ordered to active duty for special work (ADSW) from 24 November 2001 – 1 December 2001; authority Title 32, United States Codes (USC), section 505. b. Orders Number 087-059 dated 28 March 2002, reflective of Orders Number 344057 being amended to reflect a change in duration from 10 December 2001 – 31 March 2002 to now reflect 10 December 2001 – 29 June 2002; authority Title 32, USC, section 505. c. Orders Number 178-380 dated 27 June 2002, reflective of Orders Number 344057 being amended to reflect a change in the duration from 10 December 2001 – 29 June 2002 to now reflect 10 December 2001 – 30 September 2002; authority Title 32, USC, section 505 (F). d. Orders Number 071-332 dated 12 March 2003, reflective of Orders Number 273078 being amended to reflect a change in the duration from 1 October 2002 – 28 March 2003 to now reflect 1 October 2002 – 30 September 2003; authority Title 32, USC, section 505 (F). e. Orders Number 273-185 dated 30 September 2003, reflective of the applicant being ordered to ADSW from 1 October 2003 – 28 March 2004; authority Title 32, USC, section 505 (F). f. NGB Form 22 ending on 29 November 2005, reflective of the applicant's service in the ARNG from 30 November 1999 – 29 November 2005. Item 18 (Remarks) reflects that the applicant attended Initial Active-Duty Training (IADT) from 17 January 2000 - 29 November 2000 and within the Active Guard Reserve (AGR) from 1 October 2003 to 14 January 2005. g. Email communication reflective of communication between the ABCMR and the applicant with regard to an alleged debt referenced on her submitted DD Form 149. In response, the applicant provided a letter from the U.S. Department of the Treasury referenced below. h. U.S. Department of the Treasury letter dated 24 February 2022, reflective of a portion of the applicant's tax refund being applied to her $6,381.78 debt as reported by the Department of Veterans Affairs (DVA). No additional details were provided. 4. On 17 November 2022, the NGB, Chief, Special Actions Branch, provided an advisory opinion recommending denial of the applicant's request for a waiver and reimbursement of her settled MGIB debt. The applicant enlisted in the ARNG on 30 November 1999 for 6 years and was discharged on 29 November 2021 [sic]. During her enlistment, she served on ADSW from 1 October 2003 to 30 September 2004. During or following this time, she applied for the Post 9/11 GI Bill but was not approved. Upon meeting all eligibility requirements for the MGIB-Selected Reserve (MGIB-SR), the applicant began receiving her entitlement for educational assistance. However, during her benefit use, she incurred a debt ($6,381.78). a. Pursuant to Title 10, USC, section 16133, there is a limitation to the MGIB-SR educational assistance entitlement of a Service Member in the Selected Reserve. His or her eligibility expires on the separation date from the Selected Reserve. Moreover, as far as Post 9-11 G.I. Bill eligibility is concerned, Title 38 USC, section 3301 defines qualifying service for the Reserve Component as a call or order to active duty under Title 10, Section 688, 12301(a), 12301(d), 12301(g), 12301(h), 12302, 12304, 12304a, or 12304b or Title 14, Section 712. b. Upon further inquiry about this matter, the ARNG, Education Services Branch explained that the applicant's eligibility expired on her separation date of 29 November 2005. As a result of her continued receipt of MGIB-SR benefits past her discharge date, a debt of $6,411.77 was generated. The Education Services Branch further informed that the DVA has agreed to cancel the applicant's incurred debt on the grounds that it was caused by an administrative error. With regard to her request for Post 9-11 benefits however, the Education Services Branch determined that her periods of active duty do not meet qualifying service requirements outlined in Title 38, USC, section 3301. c. From the above, it results that the applicant's incurred debt was due to no fault of her own. Rather, it was the result of an administrative oversight by her unit. In addition to the DVA decision to waive Soldier’s debt, this office also recommends the reimbursement of monies collected and applied to the said debt. By contrast, she does not meet qualifications based on her AD periods and the provisions of Title 38, USC, Section 3301. Hence, this office cannot support Soldier’s request for Post 9/11 GI Bill benefits. This office therefore recommends that the Board does not grant relief on the applicant’s request. 5. On 29 November 2022, the applicant was provided with a copy of the advisory opinion and afforded 14 days to provide comments. In response, the applicant challenges the accuracy of the information provided in the advisory opinion. She notes that her service on ADSW was from 24 November 2001 – 28 March 2004, not 1 October 2003 – 30 September 2004. She also provides that this period of active duty meets the eligibility requirement to be eligible for Post 9-11 G.I. Bill benefits. 6. The applicant did not provide nor does review of her available personnel records reflect evidence of a previously issued DD Form 214 (Certificate of Release or Discharge from Active Duty) or DD Form 220 (Active Duty Report) during her military service. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board noted that the applicant requests consideration for Post 9/11 GI Bill benefits based on her active-duty service. Additionally, she requests waiver and reimbursement of her settled GI Bill debt due to it being at no fault of her own. a. The Board reviewed and agreed with the NGB’s advisory official’s finding that the applicant’s eligibility for MGIB-SR educational assistance entitlement of a Service Member in the Selected Reserve expired on her separation date of 29 November 2005. As a result of her continued receipt of MGIB-SR benefit past her discharge date, a debt of $6,411.77 was generated. The NGB was informed that the VA has agreed to cancel Soldier’s incurred debt on the grounds that it was caused by an administrative error. b. As far as her request for Post 9/11 benefits however, the Board also agreed with the NGB that her active duty periods do not meet qualifying service requirements outlined in 38 USC, Section 3301. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 621-202 (Army Educational Incentives and Entitlements) a. Chapter 4 (Post 9/11 G.I. Bill) provides that for the purposes of this policy, the terms 'Armed Services' and 'Uniformed Services' do not include the IRR unless otherwise noted. The DVA is responsible for determining eligibility for education benefits under the Post-9/11 G.I. Bill. Generally, to be eligible for the Post-9/11 G.I. Bill, Soldiers must serve on Active Duty (AD) in Regular status or on AD on specific Title 10 or Title 32 orders on or after 11 September 2001, for at least 30 continuous days with a discharge due to a service-connected disability, or an aggregate period ranging from 90 days to 36 months or more. Specific eligibility criteria are listed in Title 38 USC Section 3301. Periods of active duty that are not qualifying service for the purpose of establishing eligibility for the Post 9/11 G.I. Bill include a period of SELRES service used to establish eligibility under 10 USC Chapter 1606 (Montgomery G.I. Bill Selected Reserve (MGIB–SR) or under 10 USC 1607(Reserve Education Program (REAP)). b. Chapter 3 (Montgomery G.I. Bill Selected Reserve (MGIB-SR), Montgomery G.I. Bill – Selected Reserve Kicker and Reserve Education Program (REAP)) provides that the MGIB–SR is an education program that provides up to 36 months of benefits to members of the Selected Reserve (SELRES). This includes the Army, Navy, Air Force, Marine Corps, and Coast Guard Reserves, as well as the ARNG and the Air National Guard. An eligible Reservist may receive education benefits while in a program approved for DVA education and training. A Soldier is eligible for educational assistance under the MGIB–SR after he/she enlists, reenlists, or extends an enlistment as a Reserve of the Army for service in the SELRES after 30 June 1985, and signs at least a 6-year obligation to serve in the SELRES. 3. Title 38 USC, section 3301 (Definitions) provides that for the purpose of "active duty", members of the reserve components of the Armed Forces, service on "active duty" is under a call or order to active duty under section 688, 12301(a), 12301(d), 12301(g), 12301(h), 12302, 12304, 12304a, or 12304b of title 10 or section 712?[1] of title 14. In addition to the above, ARNG members full time service is under Title 32, Section 502(f) when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 4. AR 600-4 (Remission or Cancellation of Indebtedness) in accordance with the authority of Title 10 USC, section 4837, the Secretary of the Army may remit or cancel a Soldier's debt to the U.S. Army if such action is in the best interests of the United States. Indebtedness to the U.S. Army that may not be canceled under Title 10 USC, section 4837 when the debt is incurred while not on active duty or in an active status. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003468 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1