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.