RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-02270
XXXXXXXX COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
He be allowed to transfer his Post 9/11 GI Bill Educational benefits to his 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 2004, he was not aware that the entitlement had to be transferred prior to leaving active duty. He requests that his records be amended to allow him to transfer the entitlement to his dependent.
The Board should find it in the interest of justice to consider his untimely application because in 2008 he investigated his dependents ability to claim the education benefit and was told that since he did not transfer while on active duty it could not now be done. However, he recently spoke with a Veterans Affairs (VA) education counselor who told him that that the Chapter 33 requirement didn't exist until 2009 and his record could be changed to allow the transfer.
In support of his 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 Major (Maj, O-4) effective 29 Feb 04.
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 B.
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 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 applicants retirement date, he retired prior to the TEB program being established and therefore, he is not eligible to transfer benefits to his dependents.
A complete copy of the AFPC/DPSIT evaluation is at Exhibit B.
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 C).
The applicant responded in a personal letter signed by him and his wife, both retired service members. 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 its determination.
The applicants complete response is at Exhibit D.
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 his service subsequent to 9/11 and before passage of the Veterans Educational Assistance Act of 2008 should make him eligible for TEB; however, the board does not find merit in his 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-2014-02270 in Executive Session on 20 Feb 15, under the provisions of AFI 36-2603:
XXXXXXXXXX
XXXXXXXXXX
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The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 20 May 14.
Exhibit B. Letter, AFPC/DPSIT, dated 13 Jun 14.
Exhibit C. Letter, SAF/MRBR, dated 10 Oct 14.
Exhibit D. Applicants Rebuttal, dated 17 Oct 14.
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