RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-00386
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
She be allowed to transfer her Post-9/11 GI Bill educational benefits (TEB) to her dependent son.
________________________________________________________________
APPLICANT CONTENDS THAT:
She was unaware of the TEB opportunity at the time she applied for retirement in Apr 2008. If she had known, she would have delayed her retirement but instead she missed TEB eligibility by one month.
In support of her request, the applicant provides a personal statement, copies of her DD Form 214, Certificate of Release or Discharge from Active Duty, and marriage certificate.
The applicants complete submission, with attachments, is at Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The applicant entered active duty on 18 Jun 1986 and was retired on 1 Jul 2009. She served 23 years and 13 days.
Service members enrolled in the Post-9/11 GI Bill Program are able to transfer unused educational benefits to their dependent spouse or children. For those members eligible for retirement on 1 Aug 2009, no additional service retainability was required. 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 Bill, has at least six years of service in the Armed Forces on the date of election, and agrees to serve four additional years in the Armed Forces from the date of election can transfer their unused Post-9/11 benefits to their dependents (Title 38 USC, Chapter 33, § 3319(b)(1)). Title 38 USC, Chapter 33, § 3319(f) (1) adds that the transfer of such entitlement can only be done while serving as a member of the armed forces when the transfer is executed.
The Air Force issued Air Force Instruction 36-2301, Voluntary Education Program, Air Force Guidance Memorandum 1, on 23 Jul 2009 but did not engage in a Service-wide effort to seek out members who were already on terminal leave, or who had already completed their pre-separation counseling, in order to provide them with additional counseling on the Post-9/11 GI Bill.
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AIR FORCE EVALUATION:
AFPC/DPSIT recommends denial. DPSIT states the applicant applied for retirement in Jun 2008, and retired on 1 Jul 2009. The program for TEB started 1 Aug 2009. USC, Chapter 33, § 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. There is no evidence of an error or injustice that the applicant did not receive adequate counseling as required by law and the Department of Defense regulation prior to her retirement.
A complete copy of the DPSIT evaluation is at Exhibit B.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
She used military tuition assistance while on active duty to complete her bachelors degree and never used her GI Bill benefit although she earned it. She is fully aware of the eligibility dates for TEB and was not aware of this opportunity at the time of her retirement. She served her country honorably for 23 years, 8 years of it Post 9/11, and should be allowed to choose how to use the benefit she earned. The injustice is that she was not properly informed of the TEB while on active duty and that she is now being denied the opportunity for a timeframe of 31 days.
The applicants complete response is at 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. The applicant argues that she was not properly informed of the TEB while on active duty and if she had known about the Post-9/11 GI Bill, she would have delayed her retirement to qualify to transfer her educational benefits to her dependent son; however, we are not convinced the applicant is the victim of an error or injustice, or that she has been treated differently than those similarly situated. In this respect, we note there is no way the applicant, or any other similarly situated airman, could have known the effective date of the program and, with this information from the future, decide to delay her retirement to earn the right to transfer benefits to which she was not yet entitled. While it is unfortunate that she was retired one month short of attaining eligibility to transfer her benefits, the fact is she did not serve as a member of the armed forces on or after 1 Aug 09 in accordance with the provisions of the governing statute and the proximity of her service to the effective date of the program, no matter how close, does not, by itself, serve to make her 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.
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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 Docket Number BC-2013-00386 in Executive Session on 4 Nov 2013, under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 7 Jan 2013, w/atchs.
Exhibit B. Letter, AFPC/DPTT, dated 13 Feb 2013.
Exhibit C. Letter, SAF/MRBR, dated 27 Feb 2013.
Exhibit D. Letter, Applicant, 5 Mar 2013.
Panel Chair
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