RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-01988
	XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  YES

________________________________________________________________

THE APPLICANT REQUESTS THAT:

He be allowed to transfer his Post 9/11 GI Bill educational 
benefits to his children.

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THE APPLICANT CONTENDS THAT:

At the time of his retirement, he was converting his Montgomery 
GI Bill (MGIB) to the Post 9/11 GI Bill and may have been 
misinformed or incorrectly advised about his Transfer of 
Education Benefits (TEB) to his dependent.  

He was told that he might be eligible for the TEB and that he 
should write a letter explaining the circumstances of his 
situation.

The applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

On 1 Jun 79, the applicant was commissioned in the Air Force 
Reserve.  He was placed on extended active duty on 8 Aug 79.  On 
29 Feb 92, the applicant was released from active duty and 
transferred to the Individual Ready Reserve (IRR).  

The applicant served in the Air Force Reserve and the Air 
National Guard until his release on 16 Feb 03.

On 17 Feb 03, the applicant was placed on extended active duty 
and remained on active duty until his retirement.  His pay date 
was adjusted to 9 Jun 85 and his Total Active Federal 
Commissioned Service Date (TAFCSD) was adjusted to 15 Jun 89.

Based on information from the Military Personnel Data System 
(MilPDS), the applicant was considered and nonselected for 
promotion to the grade of lieutenant colonel five times.  
On 14 Sep 06, the applicant was considered for continuation as a 
result of his second deferral for promotion and his Date of 
Separation (DOS) was established as 30 Jun 09.  In accordance 
with AFI 36-2501, Officer Promotion and Selective Continuation, 
para 7.11.2., “continue majors until the last day of the month 
in which he or she is eligible to retire as an officer (normally 
upon completion of 20 years of total active military service)….”  

On 28 Jul 08, the applicant requested to retire and stated that 
he was applying to retire on his mandatory date of 1 Jul 09.  

On 30 Jun 09, the applicant was relieved from active duty, with 
a reason for separation of voluntary retirement: sufficient 
service for retirement.  He retired on 1 Jul 09.

Post-9/11 GI Bill:  Any member of the Armed Forces (active duty 
or Selected Reserve, officer or enlisted) on or after 1 Aug 09, 
who is eligible for the Post-9/11 GI Bill, and: 

*	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. 

*	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 

*	Is or becomes retirement eligible during the period from 
1 Aug 09 through 1 Aug 13.  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.  

*	For those individuals eligible for retirement on 1 Aug 09, 
no additional service is required.

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AIR FORCE EVALUATION:

AFPC/DPSIT recommends approval, noting there is previous 
precedent in BCMR cases to approve a member who retired between 
1 Jul and 31 Jul 09 to have their retirement date changed to 
Aug 09 to facilitate TEB approval.  Given the program was brand 
new and information was sporadic at best, it is reasonable to 
assume the member would have extended his retirement date a 
month to qualify for the TEB program, had they been advised 
properly.  We recommend extending the member's retirement date 
to 1 Aug 09 so that the member's dependents can receive the TEB 
benefit.

The complete DPSIT evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 19 May 13 for review and response.  As of this 
date, no response has been received by this office (Exhibit D).

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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 his retirement date to 1 Aug 09 due to miscounseling 
so he can qualify for the Post 9/11 TEB.  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 nonselection for promotion to the grade of 
lieutenant colonel, he met a continuation board which resulted 
in a DOS of 30 Jun 09.  Therefore, regardless of whether the 
applicant was miscounseled or not, since the continuation board 
established that he should be retired on his DOS, there is no 
basis to recommend his retirement date be changed to make him 
eligible to transfer his benefits.  Additionally, the applicant 
has not provided any evidence to show that he was treated any 
differently than others similarly situated.  Accordingly, we 
conclude the applicant has failed to sustain his burden of proof 
that he has been the victim of an error or injustice.  In the 
absence of evidence he was denied rights, to which he was 
entitled, we find no basis to recommend the relief sought in 
this application.

4.  The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issue(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered.

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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-2013-01988 in Executive Session on 12 Mar 14 and 
26 Jun 14, under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Apr 13. 
    Exhibit B.  Applicant’s Available Master Personnel Record.
    Exhibit C.  Letter, AFPC/DPSIT, dated 1 May 13.
    Exhibit D.  Letter, SAF/MRBR, dated 19 May 13.




                                   Panel Chair