RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02642
		INDEX CODE 128.00
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His records reflect he converted from the Veterans Education Assistance Program (VEAP) to the Montgomery GI Bill (MGIB).

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APPLICANT CONTENDS THAT:

At his last duty tour at Hill AFB, UT, he was sent on extended temporary duty (TDY) to Panama, Colombia, and Peru from Jul-Oct 97, and was unavailable at the base most of Jun and Oct 97.  At that time the 75 Air Base Wing (ABW) contacted personnel to invest required funds to keep the GI bill.  When he returned from his TDY and heard about the changes, he was told it was too late to invest.  He retired from active duty 1 Sep 98 and was informed he either had to be on active duty to pay into the new system or contact his Congressman.  Neither option seemed possible or appropriate.  He did not know until recently that he had this form of redress.  He wants to use this education assistance to obtain his PhD.

The applicant’s complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

The applicant entered the US Air Force Academy (USAFA) in Jun 74 and, upon graduation, entered active duty on 31 May 78.

The VEAP was enacted by Congress (Title 38, USC, Chapter 32) to provide veterans education benefits for individuals entering active duty between 1 Jan 77 and 30 Jun 85.  It was a voluntary program that offered a maximum of $8,100 in benefits to the participants who contributed $2,700 to the program.  To enroll and participate, officers and airmen were required to start an allotment or make a deposit.  

The educational benefits were revised with the signing of the Fiscal Year 1985 (FY85) Authorization Act and the MGIB was enacted (Title 38, USC, Chapter 30) and became effective 1 Jul 85.

In a letter dated 29 Apr 85, the 1100 ABW at Bolling AFB notified the applicant he was eligible to enroll in the VEAP and had until 30 Jun 85 to enroll.  After that, VEAP enrollment would be suspended due to the new MGIB.  The applicant checked on the letter that he had been notified of his eligibility for VEAP enrollment and intended to enroll prior to the new GI Bill (MGIB) legislation taking effect on 1 Jul 85.  The applicant contributed the minimum $25.00 to establish a VEAP benefit account.

According to HQ AFPC/DPPAT, Congress opened a window of opportunity for VEAP participants to convert their benefits to the more lucrative MGIB.  Public Law 99-576 allowed VEAP participants to convert to the MGIB during the period 9 Oct 96 through 8 Oct 97.

The applicant’s Officer Performance Report (OPR) for the period 2 May 97 through 1 May 98 comments on his 90-day deployment to Latin America as an Air Battle Manager Team Chief and Foreign Liaison Officer, but does not indicate the dates of the 90-day TDY.  The applicant received a Meritorious Service Medal, 1st Oak Leaf Cluster (MSM 1OLC), for the period 25 Jul 95 to 31 Aug 98, which mentions the 90-day deployment to Latin America.  Again, the TDY timeframe is not specified.

The applicant retired in the grade of lieutenant colonel on 1 Sep 98 after 20 years, 3 months and 1 day of active service.

[Note:  Any military member that entered active duty before 1 Jul 85, when the MGIB was established, had only the VEAP benefit; the education benefit for those entering after 1 Jul 85 was the MGIB.  The applicant could not switch to MGIB unless there was an “open season” type of opportunity.  The only opportunity he had to switch was the Oct 96-97 window.  While the applicant did not convert his VEAP benefit to MGIB during the Oct 96-97 window, he was eligible to contribute up to $2700 in his VEAP account.  He would then receive $8100 in benefits.  However, he did not make that contribution and therefore left himself without benefits.  There was another window in 2001 but since the applicant had already retired, this opportunity was not applicable.]

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AIR FORCE EVALUATION:

HQ AFPC/DPPAT notes the applicant submits no evidence of government error or injustice.  His untimely request prejudices the government since records concerning this conversion are no longer available.  He failed to make an election within the time established by law.  The four-month deployment the applicant contends disallowed him the opportunity to convert was a military necessity, not error.  The program was widely publicized throughout DOD and the Air Force advertised the opportunity to convert from VEAP to the MGIB at all bases starting shortly after 9 Oct 96.  The Air Force further satisfied the requirements of PL 99-576 by distributing information through commanders’ calls, Leave and Earning Statements (LES) announcements, base newspaper articles, and official bulletins.  Granting the applicant’s request will not guarantee the Department of Veterans Affairs (DVA) will award MGIB benefits.  Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends the only effort to make the program shift known at Hill AFB was at the end of the program, precisely when he was out of the country.  He could have known about the program through his LES, but he was not in the habit of reading his pay statements.  Further, this hardly seems like a sufficient effort to base a decision on such important benefits.  The people at Hill AFB and his TDY records are not available.  He applied for benefits in Mar 98, only to be told he was not eligible.  Due to operational necessity, he did not have the full opportunity to elect to change his benefits status.

A complete copy of applicant’s response, with attachments, is at Exhibit E.

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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 error or injustice.  After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded his records should reflect conversion from the VEAP to the MGIB.  The applicant’s contentions are duly noted, but we do not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force.  The applicant’s 1 May 98 OPR and the MSM 1OLC confirm his 90-day TDY, although the dates are not specified.  However, the window of opportunity to convert to the MGIB lasted an entire year from 9 Oct 96 through 8 Oct 97.  Further, as indicated by HQ AFPC/DPPAT and as we ourselves recollect, the opportunity to convert was widely publicized.  We further note the applicant apparently chose not to fully fund his VEAP account, which would have offered him some educational benefit.  Service members share a responsibility to act in their own behalf and undoubtedly others incurred long TDYs during this period.  The applicant has failed to demonstrate how the Air Force is culpable for his omission or that he has been the victim of either an error or an injustice.  We therefore agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that, absent persuasive evidence to the contrary, there is no compelling basis upon which to recommend granting the relief sought.
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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.

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The following members of the Board considered this application in Executive Session on 8 December 2004 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2004-02642 was considered:

   Exhibit A.  DD Form 149, dated 16 Apr 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPAT, dated 22 Sep 04.
   Exhibit D.  Letter, SAF/MRBR, dated 1 Oct 04.
   Exhibit E.  Letter, Applicant, dated 5 Oct 04, w/atchs.