RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-05536
COUNSEL: NONE
HEARING DESIRED: YES
APPLICANT REQUESTS THAT:
His records be corrected to show he transferred his Post-9/11 GI Bill Education Benefits (TEB) to his spouse while on active duty.
APPLICANT CONTENDS THAT:
At the time of his retirement in 2008, TEB was not allowed; which has resulted in the Department of Veterans Affairs (DVA) denying his claim to transfer part of his Post 9/11 GI Bill benefits to his spouse. DVA did tell him he could request a correction to his records showing that he did transfer his educational benefits to his spouse.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
The applicant initially entered the Regular Air Force on 20 Oct 83.
On 15 Nov 91, the applicant was honorably discharged.
On 13 Oct 95, the applicant reenlisted in the Regular Air Force.
On 30 Nov 08, the applicant was released from active duty and retired, effective 1 Dec 08.
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
AFPC/DPSIT recommends denial indicating there is no evidence of an error or an injustice. For the first time in history, service members enrolled in Title 38, U.S.C., Chapter 33 (Post-9/11 Educational Assistance), are able to transfer unused educational benefits to their dependent spouses or children. Any member of the Armed Forces, active duty or Selected Reserve, officer or enlisted, on or after 1 August 2009, who is eligible for the Post-9/11 GI Bill, has at least six years of service in the Armed Forces on the date of election, and agrees to serve a specified additional period in the Armed Forces from the date of election (if applicable), may transfer unused Post-9/11 benefits to their dependents pursuant to Service regulations (38 U.S.C. §3319(b)(l)). Title 38, U.S.C. §3319(b)(l)) adds that the transfer of such entitlement can only be done will serving as a member of the armed forces when the transfer is executed.
The member retired effective 30 Nov 08. By law and Department of Defense (DoD) regulations, the program for the Transfer of Benefits started 1 Aug 09. Since 38 USC, Chapter 33, Section 3319 (f) (1) states: "an individual... may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed, we can only recommend denial.
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 24 Jan 14 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office.
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 took notice of the applicants complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.
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-2013-05536 in Executive Session on 3 Nov 14 under the provisions of AFI 36-2603:
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 25 Nov 13, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPSIT, dated 19 Dec 13.
Exhibit D. Letter, SAF/MRBR, dated 24 Jan 14.
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