IN THE CASE OF: BOARD DATE: 15 November 2023 DOCKET NUMBER: AR20230002343 APPLICANT REQUESTS: requests to be granted his Transfer of Education Benefits (TEB), restore, or make contract exception. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Affairs (VA) letter * Army National Guard (ARNG) Retirement Points History Statement * Three (3) DD Forms 214 (Certificate of Release or Discharge from Active Duty) * NGB Form 22 (National Guard Report of Separation and Record of Service) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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: a. On 9 March 2010, while of active status at his home unit, he requested/signed-up for the new TEB program of the Post-9/11 GI Bill for his then 17-year-old daughter , who would start her college pursuits in the Summer of 2010 at University. He was not advised, nor was he aware when he signed up for the TEB program that he would incur a mandated active military service obligation. b. He signed up for the TEB program in March 2010. The TEB program had been in effect less than one year; therefore, those administering the program at his home unit, the Education Office, nor the VA were familiar with the requirements. Specifically, his obligation to stay on an active drill status was not identified, nor mentioned by those administering the TEB program. This is evidenced by a statement made to him by the administrative personnel in his unit, “All you have to do is sign.” While, on the other hand, the VA representatives at the university his daughter was attending, saying, “this program is so new, we really don’t know all the rules.” c. No one explained to him how the TEB worked or that there was a requirement to stay on active drill status. In the fall of 2011, due to state level economic struggles, the State of was encouraging its Guard units to reduce their active personnel strength. At the same time, his potential full time civilian employer alluded that being on active drill status with the National Guard was not a favorable situation for them to hire him. Because of these two issues, he switched to Inactive National Guard (ING) status on 13 October 2011 until the end of my enlistment on 30 April 2014 to maintain his civilian job. d. When he changed to ING status in 2011, he was not aware nor was he told by the Guard or VA that the status change would cause his TEB approval to be revoked and all cumulative education benefits incurred through the program had to be paid back. He did not know his TEB was revoked until May 2016. When the VA terminated his TEB approval in May 2016, an overpayment of $45,865.84 was generated. Multiple discussions and requests for waivers between himself and the VA reps and between his daughter and the VA reps took place May 2016 until January 2022. e. During this time, he and his daughter were trying to understand the process for any recourse to this misunderstanding. He and his daughter were told by both VA reps that there were a significant number of open cases like ours where Guard veterans had unknowingly had their TEB revoked due to their duty status. They were also told they had to wait indefinitely for a decision. It was not until January 2022 that they completely understood that the VA does not have authority to grant waivers nor change status related TEB. 3. The applicant provides: a. VA letter, dated 9 November 2016, informed the applicant’s daughter that the Committee on Waivers and Compromises has denied her request to waive collection of her Post 9/11 (Chapter 33) Transfer of Entitlement education debt. The cumulative debt balances consisted of tuition and fees $21,651.01; housing $21,598.16; and books/supplies $2,616.67. b. Army National Guard (ARNG) Retirement Points History Statement, dated 24 June 2015, is a summary of his points earned towards his retirement beginning on 19 February 1988 through 30 April 2014. He had a total of 2,654 active duty points and a total of 3,109 points for retirement pay. c. Three (3) DD Forms 214 for the following periods of service: * U.S. Navy, from 23 May 1988 through 1992, honorably released from active duty and transferred to Naval Reserve * ARNG, from 30 January 2003 through 29 January 2004, honorably released from active duty and transferred back to the ARNG- * ARNG, from 29 September 2008 through 31 October 2009, honorably released from active duty and transferred back to the ARNG- d. NGB Form 22 reflects he was honorably discharged from the ARNG of on 30 April 2014, under the provisions of NGR 600-200, expiration term of service (ETS). He served 11 years and 10 months of net service this period; 3 years, 10 months, and 18 days of prior Reserve Component service; and, 3 years 10 months, and 8 days of prior Active Federal Service. 4. A review of the applicant’s service record shows: a. He enlisted in the Army National Guard on 1 July 2002. b. As stated in paragraph 3d, he was honorably discharged from the ARNG of on 30 April 2014, under the provisions of NGR 600-200, expiration term of service. 5. On 17 July 2023, the National Guard Bureau (NGB) provided an advisory opinion and recommended approval of the applicant's request. The advisory states: a. The applicant’s TEB request was approved on March 9, 2010, with an obligation end date of March 8, 2014 (4 years). At the time of his request, DTM 09-003, dated June 22,2009, required Service Members to complete a four-year service obligation. b. On March 29, 2010, the applicant signed an ARNG Statement of Understanding (SOU) acknowledging the requirement to serve four years from the date of the TEB request. On October 13, 2011, the applicant transferred to the Inactive National Guard (ING) and remained in the ING until his ETS on April 30, 2014. c. Because the applicant was not properly counseled that his time spent in the ING would not count towards his service obligation nor was he properly counseled prior to his separation that he had a remaining service obligation, we recommend the board grant relief. 6. In response to the advisory opinion provided by the National Guard Bureau, the applicant states, he agrees and concurs with the advisory opinion and looks forward to learning the final determination from the Board. 7. Army Regulation (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 interest of the United States, the debt was incurred while on active duty or in an active status, and the Soldier received an honorable discharge (if separated from active duty). Under Title 10, United States Code (USC), section 4837 a debt acknowledged as valid may be remitted or cancelled. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, 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. One potential outcome was to deny relief based on the applicant did not provide sufficient evidence that he was not properly counsel and that he did not know or was told about the change. However, upon review of the applicant’s petition, available military records and the National Guard Bureau (NGB) advisory opinion, the Board majority concurred with the advising official recommendation, finding the applicant was not accurately counseled regarding his time in the ING and that his time would not count towards his service obligation nor was he properly counseled prior to his separation that he had a remaining service obligation. Based on this, the Board granted relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 to show the applicant’s Transfer of Education Benefits (TEB) was restored and his application is current. 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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (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 interest of the United States, the debt was incurred while on active duty or in an active status, and the Soldier received an honorable discharge (if separated from active duty). Under Title 10, United States Code (USC), section 4837 a debt acknowledged as valid may be remitted or cancelled. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002343 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1