RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03204 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her records be corrected to reflect she transferred her Post- 9/11 GI Bill benefits to her dependents. APPLICANT CONTENDS THAT: She was not counseled on the transfer of education benefits (TEB) prior to her retirement, effective 1 Aug 09. According to the Air Force Personnel Center (AFPC) website, a waiver was pending at the Air Staff to determine if members with an established retirement date of 1 Aug 09 were eligible to transfer benefits. However, the information was subsequently deleted. If the waiver allowed those with an established retirement date of 1 Aug 09 to delay their retirement date in order to be eligible for the TEB, she was not counseled and given a chance to change her retirement date. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant’s military personnel records indicate she was commissioned in the Air Force Reserve on 6 May 89 and then placed on extended active duty on 23 Jul 89. Therefore, her Total Active Federal Commissioned Service Date (TAFCSD) was established as 23 Jul 89. On 1 Oct 00, the applicant was promoted to the grade of major (04). In accordance with AFI 36-2501, Officer Promotions and Selective Continuation, officers in the grade of major may be continued until the last day of the month in which he or she is eligible to retire, which is normally upon completion of 20 years of total active military service. On 4 Oct 05, the applicant was considered for continuation as a result of her second deferral for promotion to the grade of lieutenant colonel (0-5) and her Date of Separation (DOS) was established as 31 Jul 09. Based on information from the Military Personnel Data System (MilPDS), the applicant was considered and non-selected for promotion to the grade of lieutenant colonel (0-5) six times. On 4 Aug 08, the applicant requested to retire and stated that she was applying to retire on her mandatory separation date (MSD) of 1 Aug 09. On 31 Jul 09, the applicant was relieved from active duty and retired, effective 1 Aug 09, in the grade of major (0-4) with a narrative reason for separation of “Voluntary Retirement: Maximum Service or Time In Grade.” She was credited with 20 years and 8 days of total active service. AIR FORCE EVALUATION: AFPC/DPSIT recommends approval, indicating the member was on terminal leave at the standup of the program and did not receive proper counseling prior to entering terminal leave status. In accordance with Title 38 USC, Chapter 33, § 3319(f)(1), the TEB can only be done while serving as a member of the Armed Forces when the transfer is executed. Specifically, any member of the Armed Forces who, on or after 1 August 2009, and is eligible for the Post-9/11 GI Bill (had at least six years of service on the date of election and agreed to serve (if applicable) a specified additional period from the date of election) may transfer unused Post-9/11 GI Benefits to their dependents. Service Secretaries were required, as of 22 June 2009, to provide and document counseling regarding these benefits. The Air Force issued AFI 36-2306_AFGMI on 23 July 2009, which required pre-separation counseling be documented on DD Form 2648. Additionally, there were various news articles about the Post-9/11 GI Bill; most noted the requirement to be on duty on the 1 August 2009 effective date of the Post-9/11 GI Bill to be eligible to transfer benefits. However, the Air Force did not seek out members who were already on terminal leave, or had already completed separation counseling. In this case, the member did not have the opportunity to process the TEB action properly while on active duty. Therefore, an injustice was caused to the member and the TEB application should be approved, effective 1 Aug 09. The member’s retirement date will need to be adjusted from 31 July 09 to 1 Aug 09 in the Defense Manpower Data Center (DMDC) system as well to allow for the member’s TEB approval. A complete copy of the AFPC/DPSIT evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 23 Aug 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note the Air Force Office of Primary Responsibility (OPR) recommends correcting the applicant’s retirement date to reflect 1 Aug 09 due to miscounseling so she can qualify to transfer her Post- 9/11 GI Bill benefits to her dependents.. However, according to the Directive Type Memo, dated 10 Sep 10, the TEB must be initiated while on active duty which means the applicant’s retirement date would need to be extended until 1 Sep 09, in order to qualify for TEB. Although there is precedent where the Board has extended others for 30 days when there was evidence of miscounseling, the circumstances in this case do not warrant similar relief. In this respect, it appears that due to the applicant’s non-selection for promotion to the grade of lieutenant colonel, she met a continuation board which resulted in a date of separation (DOS) of 31 Jul 09. Therefore, regardless of whether the applicant was miscounseled or not, since the continuation board established that she should be retired on her DOS, there is no basis to recommend her retirement date be changed to make her eligible to transfer her benefits. Additionally, the applicant has not provided any evidence to show that she was treated any differently than others similarly situated. Accordingly, we conclude the applicant has failed to sustain her burden of proof that she has been the victim of an error or injustice. In the absence of evidence she was denied rights to which she was entitled, we find no basis to recommend the relief sought in this application. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. The following members of the Board considered AFBCMR Docket Number BC-2013-03204 in Executive Session on 1 Jul 14, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 17 Jun 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIT, dated 9 Jul 13. Exhibit D. Letter, SAF/MRBR, dated 12 Aug 13.