RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-02064

	XXXXXXXXXXXXX		COUNSEL:  NONE

		HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

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


APPLICANT CONTENDS THAT:

He served on active duty post-9/11 through 31 Mar 2005 and he is otherwise eligible for this benefit. Right before his retirement he was assigned to HQ USAF in the Pentagon.  In this position he performed TDY in 32 different countries and was unable to attend standard benefits presentations and other administrative counseling programs.  He was unaware the transferability portion of this benefit required specific registration; therefore, he requests a correction of his records to reflect he was not properly counseled on the benefit or this specific sign-up requirement and his benefits be reinstated. 

The applicant's complete submission is at Exhibit A.


STATEMENT OF FACTS:

The applicant initially retired from active duty Air Force in the grade of Colonel (Col, O-6) effective 31 Mar 05.  He then joined the Air Force Reserve and retired on 28 May 10.

Post-9/11 GI Bill Transferability:  Any Service member on or after 1 August 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request to transfer that entitlement, may transfer that entitlement provided he or she meets one of these conditions:

* Has at least 6 years of service in the Military Services (active duty or Selected Reserve), National Oceanic and Atmospheric Administration Commissioned Officer Corps (NOAA) Corps, or Commissioned Corps of the Public Health Service (PHS) on the date of approval and agrees to serve 4 additional years in the Military Services, NOAA Corps, or PHS from the date of election.

* Has at least 10 years of service in the Military Services (active duty or Selected Reserve), NOAA Corps, or PHS on the date of approval, 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.

In accordance with AFI 36-2306, “For individuals eligible for retirement on 1 Aug 09, no additional service is required.”  Given that the applicant was eligible for retirement prior to 1 Aug 09, he would have incurred no active duty service commitment (ADSC) obligation with TEB approval.

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 Exhibits B and E.    


AIR FORCE EVALUATION:

AFPC/DPSIT recommends denial.  DPSIT states, the member retired effective 31 May 05.  By law and DoD regulations, the program for the Transfer of Education Benefits (TEB) started 1 Aug 09.  According to 38 USC, Chapter 33, Section 3319 (f) (1) "an individual...may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed."  Based on the applicant’s retirement date, he retired prior to the TEB program being established and therefore, he is not eligible to transfer benefits to his dependents.

AFPC/DPSIT advisory was sent to the applicant, to which he responded on 3 Oct 14 (See Applicant’s Review of the Air Force Evaluation).  Because of his response the following additional advisory was generated by ARPC/DPTT. 

ARPC/DPTT recommends denial.  In accordance with DoDI 1341.13, Enclosure 3, 3.f.(2)(a)2., “An individual may not add family members after retirement or separation from the Military Services, USCG, NOAA Corps, or PHS, but may modify the number of months of the transferred entitlement or revoke transfer of entitlement after retirement or separation for those family members who have received transferred benefits prior to separation or retirement.” DPTT states, the member did not provide documentation from his losing unit that supports his claim that he was not properly counseled on the benefit or specific sign-up requirements.  Furthermore, the Air Force communication plan was reasonable and no error or injustice occurred.  Relief should not be granted as it will set a precedent allowing future members the expectation of approval on similar requests where the member failed to make an allocation prior to retirement or separation.  The transfer of benefits is not an entitlement of the Post 9/11 GI Bill program but an opportunity if the requirements are met. In every case the member maintains the ability to use the Post 9/11 benefit themselves. If the decision is to grant the relief sought, a transfer request will have to be generated on behalf of the member and approved by the approval authority.

A complete copy of the Air Force evaluations, with attachments, is at Exhibits B and E.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the AFPC/DPSIT evaluation was forwarded to the applicant on 4 Aug 14 for review and comment within 30 days (Exhibit C).  

In response to AFPC/DPSIT the applicant indicates that he based his initial request on his active duty time in the US Air Force and did not understand the actual effective dates of the TEB law.  However, the fact of the matter is that he retired from active duty on 31 Mar 05 and continued to serve in the Active Reserve until 28 May 10. 

The applicant’s complete response is at Exhibit D.  

As noted above the applicant’s response generated an evaluation by AFPC/DPTT. 

A copy of the ARPC/DPTT evaluation was forwarded to the applicant on 27 Oct 14 for review and comment within 30 days (Exhibit F).  

The applicant states that providing evidence that his active duty unit, HQ USAF, did not properly counsel him on this benefit is an unfair burden.  HQ ARPC should be well-aware that this level of counsel, to a Reserve IMA by an active duty headquarters-level organization, is a routine omission.  Furthermore, the idea of a precedent is irrelevant.  He hopes that AFRBA does not decide against a veteran’s benefits because other veterans might have the same problem.  

The applicant’s complete response is at Exhibit G.  


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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action regarding the applicant's TEB.  We note the comments of the Air Force office of primary responsibility; nonetheless, based on the evidence of record, we find it reasonable to believe that the applicant had every intention of transferring his benefits, but was never properly informed on the requirements to elect transfer prior to separating from the Reserve. In this regard, at the time of the applicant’s retirement, the Post-9/11 GI Bill was still being introduced.  Given the applicant had more than 20 years of satisfactory service and would not have incurred an additional ADSC obligation to transfer his TEB, we find the evidence provided sufficient to provide relief.  Therefore, in the interest of justice, we recommend his record be corrected to show that on 
1 May 10 he elected to transfer his benefits.  Accordingly, we recommend the applicant's record be corrected as set forth below.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 1 May 10, he elected to transfer his Post-9/11 GI Bill Educational Benefits to his dependents.


The following members of the Board considered AFBCMR Docket Number BC-2014-02064 in Executive Session on 20 Feb 15, under the provisions of AFI 36-2603:

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The board unanimously voted to correct the records, as recommended.  The following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 14 May 14.
Exhibit B.  Letter, AFPC/DPSIT, dated 27 May 14.
Exhibit C.  Letter, SAF/MRBR, dated 4 Aug 14.
Exhibit D.  Applicant’s Rebuttal, dated 14 Aug 14
Exhibit E.  Letter, ARPC/DPTT, dated 3 Oct 14 w/atchs.
Exhibit F.  Letter, SAF/MRBR, dated 27 Oct 14.
Exhibit G.  Applicant’s Rebuttal, dated 28 Nov 14.











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