IN THE CASE OF: BOARD DATE: 12 September 2023 DOCKET NUMBER: AR20230002205 APPLICANT REQUESTS: • approval to Transfer Education Benefits (TEB) his Post 9/11 GI Bill to his dependent • a personal appearance before the Board via video or telephonically APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 effect, he transferred his Post 9/11 GI Bill educational benefits to his spouse prior to his separation from active duty. His wife used the educational benefits between December 2011 and January 2013. He was then involuntarily separated from the Army which caused him not to fulfill the additional service obligation for the transfer of his benefits. a. Approximately, nine- and one-half years later, on 30 September 2022, he received a letter from the Department of Veterans Affairs (VA) which stated his educational benefits had been terminated on 20 March 2011, 2-years prior to his separation date, therefore the educational benefits that his wife had used would not be honored for his failure to complete his service obligation. He now is required to pay $23,000.00 in tuition to the school and $2,000.00 to the VA for books and school supplies. He does not have the funds to pay this unexpected amount of monies. b. He requests the Board waive his service obligation and correct his service record to reflect eligibility for the transferring of his educational benefits to his dependents. His request should be granted as his wife used the educational benefits over 10-years ago and he was not notified until more than 9-years after his separation from active duty. It is unfair for this determination so many years after he was separated and so many years after the use of the benefits. 3. A review of the applicant's service record shows: a. The applicant enlisted in the Regular Army on 23 October 1998 and had continuous service through reenlistments. b. The applicant's Enlisted Record Brief shows: • he was reduced to the rank/grade of sergeant (SGT)/E-5 on 16 March 2013 • he deployed to: • Iraq during the period of 20 March 2008 through 19 March 2009 • Afghanistan during the periods of 13 February through 20 September 2002, 29 January through 30 October 2003, and 15 December 2011 through 10 October 2012 c. On 10 June 2013, the applicant's commander notified him of his proposed separation under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12c and recommended the applicant be separated prior to his expiration term of service (indefinite reenlistment on 24 March 2010) for the specific reasons of violating a lawful general regulation, was cruel and maltreated a subordinate, and obstructed justice. He consulted with counsel and waived consideration of his case by an administrative separation board and did not submit statements on his behalf. d. On 12 July 2013, the commander of HQs, U.S. Army Alaska directed the applicant be separated under provision of AR 635-200, paragraph 14-12c (Commission of a Serious Offense) with a General Under Honorable Conditions characterization of service prior to his expiration term of service. e. During the separation process, the applicant did not wish to receive additional counseling regarding the Post 9/11 GI Bill Chapter 33. The applicant requested an exception to AR 27-10 (Military Justice), paragraph 5-16 which provides separation prior to the appellate review of his court-martial conviction, which was approved. f. The applicant was discharged from active duty on 15 August 2013 under the provision of AR 635-200, paragraph 14-12c with a general under honorable conditions character of service. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant completed 14-years, 9-months, and 23-days of active service. g. On 9 October 2014, General Court-Martial Orders Number 13, the applicant was arraigned and found guilty of: • Charge II, one specification of wrongfully engaging in a prohibited relationship with a Soldier of a different rank • Charge III, specification two; maltreatment of an enlisted Soldier subject to his orders, by sexually harassing • Charge VI, specification two; wrongfully endeavor to impede the investigation against him by asking a potential witness to lie for him and tell the commander the charges were not true The sentence was adjudged on 2 March 2013 and he was sentenced to reduction in rank to SGT/E-5. The sentence was approved and was executed. 4. On 25 May 2023, in the processing of this case, the U. S. Army Human Resources Command provided an advisory opinion regarding the applicant's request to waive his service obligation for the transfer of his post 9/11 GI Bill educational benefits. The advisory official recommended disapproval of the applicant's request. 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 was involuntarily discharged from active duty on 15 August 2013. The applicant submitted a TEB request on 20 March 2011, and it was approved on 4 April 2011 with a service Obligation End Date (OED) of 19 March 2015, which was visible in the upper left corner of the TEB website. He was found guilty at a court-martial for serious misconduct and consequently he was involuntarily separated from the U.S. Army on 15 August 2013 with a general under honorable conditions discharge which was prior to the completion of his TEB OED of 19 March 2015. 5. On 30 September 2022, an inquiry from the VA Regional Processing Office was received regarding the applicant's TEB. Upon researching the case, it was determined the applicant did not fulfill his TEB service obligation so in accordance with Public Law 110-252, section 3319(i), the VA is authorized to initiate collection proceedings as they are the sole paying agent for all GI Bill programs for benefits used by dependents who used transferred benefits. 6. On 2 June 2023, the Army Review Boards Agency, Case Management Division provided the applicant the advisory opinion for review and comment. The applicant responded on 16 June 2023 stating the decision of the advisory opinion was unfair and should be reconsidered. His commitment to serving the nation and the sacrifices he made throughout his military career along with him diligently and honorably fulfilled his service obligation during his active duty of over 13-years of service. If it was not for an unfortunate event which he did not commit that led to a court-martial he would have fulfilled his service obligation. His records demonstrate he had exceptional, honorable and fast tracking career prior to this. He believes the opportunity to transfer his education benefits is an earned privilege that recognizes the dedication and sacrifices of military personnel and that many years of honorable service before his court-martial should suffice for his service obligation. There was the extenuating circumstance of his involuntary separation for which he did not plan and did not intend to separate from the military before he fulfilled his service obligation. Also, according to his DD Form 214 he had continuous honorable service during the period of 23 October 1998 through 31 May 2012, which accounts for over 13-years of honorable active service which should be considered in approving his request for the waiver of his service obligation to be eligible for TEB. It had not been an easy transition from active service to civilian life upon his involuntary separation, but with the added challenge of the notice of the termination of his education benefits and having to repay over $25,000.00 has placed a great financial strain on his family. He also requests the Board to consider the precedents that has been set in similar cases where waiver had been granted due to extenuating circumstances in the interest of fairness and consistency. He requests the Board be give a thorough review and he feels that a waiver of the service obligation would be fair and just resolution with aligns with the underlying principles of the Post 9/11 GI Bill. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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 reviewed and agreed with the advisory official’s recommendation to deny relief. The applicant submitted a TEB request on 20 March 2011, and it was approved on 4 April 2011 with a service Obligation End Date (OED) of 19 March 2015, which was visible in the upper left corner of the TEB website. He was found guilty at a court-martial for serious misconduct and consequently he was involuntarily separated from the U.S. Army on 15 August 2013 with a general under honorable conditions discharge which was prior to the completion of his TEB OED of 19 March 2015. Since he did not complete the service requirements for which this program is designed, the Board determined relief is not warranted. 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. 9/12/2023 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. Public Law 110-252 establishes legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, section 3020 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. 3. 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. 4. 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. 5. Army Regulation 15-185 (Army Board for Correction of Military Records (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 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//