RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-02170
XXXXXXXX COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
She be allowed to transfer her Post 9/11 GI Bill Educational benefits to her dependent.
APPLICANT CONTENDS THAT:
Chapter 33, Post-9-11 Educational Assistance, Title 38 United States Code (USC) did not exist until August 2009 and having retired in 2006, she was not aware that the entitlement had to be transferred prior to leaving active duty. She requests that her records be amended to allow her to transfer the entitlement to her dependent.
The Board should find it in the interest of justice to consider her untimely application because in 2008 she investigated her dependents ability to claim the education benefit and was told that since she did not transfer while on active duty it could not now be done. However, she recently spoke with a Veterans Affairs (VA) education counselor who told her that that the Chapter 33 requirement didn't exist until 2009 and her record could be changed to allow the transfer.
In support of her appeal the applicant submits VA Form 21-4138, Statement in Support of Claim.
The applicant's complete submission, with attachment, is at Exhibit A.
STATEMENT OF FACTS:
The applicant retired from the Air Force in the grade of Lieutenant Colonel (Lt Col, O-5) effective 31 Oct 05. She served 20 years, 6 months and 23 days of active service.
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.
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. DPSIT states, the member retired effective 31 Oct 05. By law and DoD regulations, the program for the Transfer of Education Benefits (TEB) started 1 August 2009. 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 applicants retirement date, she retired prior to the TEB program being established and therefore, she is not eligible to transfer benefits to her dependents.
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 10 Oct 14 for review and comment within 30 days (Exhibit D).
In response to the Air Force evaluation the applicant submits a personal letter written by her and her husband as a rebuttal for this case and her husbands case. In the letter they state that they were dismayed not only by the recommendation to deny their applications, but also for the reasons they were denied. Accordingly, they want the board to consider the information provided in the letter as evidence when making their determination.
The applicants complete response is at Exhibit E.
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 the applicant has not been the victim of an error or injustice. The applicant believes her service subsequent to 9/11 and before passage of the Veterans Educational Assistance Act of 2008 should make her eligible for TEB; however, the board does not find merit in her argument. The Board notes the purpose of the TEB is to promote recruitment and retention of service members and that the definition of service members found in DoDI 1341.13, Post-9/11 GI Bill, specifically excludes retired service members. Therefore, in the absence of evidence to the contrary, the board recommends the requested relief be denied.
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-2014-02170 in Executive Session on 20 Feb 15, under the provisions of AFI 36-2603:
XXXXXXXXXX
XXXXXXXXXX
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The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-02170 was considered:
Exhibit A. DD Form 149, dated 20 May 14, w/atch.
Exhibit B. Master Personnel Record
Exhibit C. Letter, AFPC/DPSIT, dated 13 Jun 14.
Exhibit D. Letter, SAF/MRBR, dated 10 Oct 14.
Exhibit E. Applicants Rebuttal, dated 17 Oct 14
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