AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

 
DOCKET NUMBER: BC-2012-01531 
COUNSEL: 
HEARING DESIRED: NO 

IN THE MATTER OF: 
   
   
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
His records be corrected to show that his dependent son is his 
designee for Transfer of Education Benefits.   
 
________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
1. As a result of his retroactive retirement, he did not receive 
a  proper  retirement  briefing  and  various  elections  that  should 
have  been  made  before  his  actual  retirement  date  were  not 
accomplished.    His  DD  Form  214,  Certificate  of  Release  or 
Discharge  from  Active  Duty  establishes  that  he  was  retired 
pursuant  to  the  litigation  settlement  and  demonstrated  the 
effective date of his retirement was retroactively determined. 
 
2. He  is  a  Gulf  War  veteran  and  entitled  to  have  his  Veterans 
Affairs  (VA)  educational  benefits  transferred  to  his  dependent 
son.    Nothwithstanding,  the  circumstances  leading  to  his 
retirement, he is entitled to the benefits of a retired military 
officer, including the transfer of educational benefits.   
 
3. While  attempting  to  execute  the  transfer  of  education 
benefits, he was informed his records do not reflect he made a 
timely  election.    A  timely  election  was  not  available  to  him, 
since his retirement date was retroactively determined. 
 
4. There is a precedent for this action.  Another member in the 
Berkley  litigation,  Major  B,  was  similarly  retroactively 
retired,  resulting  in  an  inability  to  make  a  Survivor  Benefit 
Plan  (SBP)  election  at  the  time  of  his  retirement.    Major  B, 
appealed  to  the  Air  Force  Board  for  Correction  of  Military 
Records (AFBCMR) and the Board granted his request to change his 
records  to  reflect  he  elected  child  only  SBP  coverage  based  on 
full retired pay effective 1 Feb 05.  
 
In  support  of  his  request,  the  applicant  provides  a  three-page 
legal brief, a copy of his DD Form 214, DFAS-JECC/DE memorandum 
and various other documentation associated with his request.  
 
 
 
 

The  applicant's  complete  submission,  with  attachments,  is  at 
Exhibit A. 
 
________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
On 31 May 05, the applicant retired in the grade of captain.  He 
served 16 years and 29 days of total active service.  
 
In  1992,  the  applicant  was  selected  for  involuntary  separation 
from active duty as a first lieutenant by a Reduction in Force 
(RIF) Board.  In 1999, the applicant was part of a class action 
lawsuit  against  the  Air  Force  in  the  United  States  Court  of 
Federal  Claims  alleging  the  instructions  provided  by  the 
Secretary  of  the  Air  Force  (SECAF)  to  the  RIF  board  denied  to 
members of the class certain constitutional rights by according 
preferential  treatment  to  women  and  minorities.    After  the 
litigation  process,  including  an  appeal  to  the  United  States 
Court  of  Appeals  for  the  Federal  Circuit  which  overturned  the 
lower  court  ruling  that  dismissed  the  case,  the  United  States 
settled the litigation with the class members, providing several 
alternative avenues for recourse from which class members could 
select. 
 
The  applicant  chose  to  be  reconsidered  for  retention  on  active 
duty.    As  a  first  lieutenant,  the  reconstituted  and  properly 
instructed  RIF  Board  selected  him  for  retention.    A  selection 
board  considered  him  for  promotion;  he  was  selected  and 
retroactively  promoted  to  the  grade  of  captain.    Twenty  years 
after  he  entered  active  duty,  the  applicant  retired,  having 
received  constructive  active  service  credit  for  the  period 
during 1 Jan 93 (the first day after his involuntary separation) 
to 31 May 05 (the date of his retirement).  Final judgment was 
entered in the applicant’s case on 30 Jun 08.   
 
The remaining relevant facts pertaining to this application are 
contained  in  the  letter  prepared  by  the  appropriate  office  of 
the Air Force, which is attached at Exhibit B.  
 
________________________________________________________________ 
 
AIR FORCE EVALUATION: 
 
AFPC/DPSIT recommends denial since the program was not in effect 
at the time of the applicant’s retirement.   
 
The complete DPSIT evaluation is at Exhibit B. 
 
________________________________________________________________ 
 
 
 
APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

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A  copy  of  the  Air  Force  evaluation  was  forwarded  to  the 
applicant  on  25  Jun  12,  for  review  and  comment  within  30  days 
(Exhibit  C).    As  of  this  date,  this  office  has  not  received  a 
response. 
 
________________________________________________________________ 
 
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 error or injustice.  We took notice 
of the applicant’s 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 and adopt its 
rationale as the basis for our conclusion that the applicant has 
not been the victim of an error or injustice.  Therefore, in the 
absence  of  evidence  to  the  contrary,  we  find  no  basis  to 
recommend granting the relief sought in this application.    
________________________________________________________________ 
 
THE BOARD DETERMINES THAT: 
 
The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate  the  existence  of  material  error  or  injustice;  that 
the  application  was  denied  without  a  personal  appearance;  and 
that  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  BC-2012-
01531 in Executive Session on 8 Jan 13, under the provisions of 
AFI 36-2603: 
 

 
The  following  documentary  evidence  pertaining  to  AFBCMR  Docket 
Number BC-2012-01531 was considered: 
 
    Exhibit A.  DD Form 149, dated 10 May 12, w/atch. 
    Exhibit B.  Letter, AFPC/DPSIT, dated 31 May 12. 
    Exhibit C.  Letter, SAF/MRBR, dated 25 Jun 12.  
                    

 
 
 

Panel Chair 
Member 
Member 

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