RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00682 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He be allowed to transfer his Post-9/11 GI benefits to his dependants. _________________________________________________________________ APPLICANT CONTENDS THAT: His Military Personnel Flight or Education Office did not inform him that he was eligible to transfer his benefits from the Montgomery GI Bill (MGIB) to the Post 9/11 GI Bill while he was still on active duty. This was because the Department of Defense (DoD) policy (DTM 09-003) was not published until nearly two weeks after he departed on terminal in June 2009 from his last duty station. Had he known this was a requirement, he would have requested the Transfer of Education Benefits (TEB) before 1 October 2009. In support of his appeal, the applicant provides a personal statement and copies of his terminal leave form, his retirement order, DoD Memorandum DTM 09-003, Personnel Services Delivery Guide, Post 9/11 GI Bill TEB Field Tutorial, Post 9/11 GI Bill statement of understanding, and “Ask AFPC” email correspondence. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who entered active duty on 17 November 1986. He was progressively promoted to the grade of senior master sergeant (SMSgt) (E-8) effective 1 December 2006. He was honorably discharged from active duty on 30 September 2009 and retired effective 1 October 2009 in the grade of SMSgt. He served 22 years, 10 months, and 14 days on active duty. Post-9/11 GI Bill: Any member of the Armed Forces (active duty or Selected Reserve, officer or enlisted) on or after 1 August 2009, who is eligible for the Post-9/11 GI Bill, and: Has at least six (6) 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. Has at least ten (10) years of service in the Armed Forces (active duty and/or selected reserve) on the date of election, is precluded by either standard policy (service or DoD) or statute from committing to four (4) additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute, or: Is or becomes retirement eligible during the period from 1 August 2009, through 1 August 2013. A service member is considered to be retirement eligible if he or she has completed twenty (20) years of active duty or twenty (20) qualifying years of reserve service. For those individuals eligible for retirement on 1 August 2009, no additional service is required. For those individuals who have an approved retirement date after 1 August 2009, and before 1 July 2010, no additional service is required. For those individuals eligible for retirement after 1 August 2009, and before 1 August 2010, one (1) year of additional service after approval of transfer is required. For those individuals eligible for retirement on or after 1 August 2010, and before 1 August 2011, two (2) years of additional service after approval of transfer are required. For those individuals eligible for retirement on or after 1 August 2011, and before 1 August 2012, three (3) years of additional service after approval of transfer required. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIT recommends denial. DPSIT states that prior to the TEB’s activation, program information and guidance was made available through the Air Force Personnel Center (AFPC) and the Department of Veterans Affairs (DVA) beginning early 2009. Every effort was made by DoD, DVA, and the services to make sure every eligible servicemember understood the process for transferring benefits. The TEB system began accepting applications as of 27 June 2009 with an effective date no earlier than 1 August 2009. Many servicemembers understood the law only required that one needed to be on active duty or in the Selected Reserve as of 1 August 2009. In discussing this issue with education counselors and education service officers, it was conveyed that many servicemembers thought they were eligible for the transfer as long as they were serving on active duty as of 1 August 2009 and did not realize that participating in the program required that they complete the transfer of benefits while serving on active duty or in Selected Reserve status. Title 38, United States Code, Chapter 33, Section 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.” However, if the Board deems it appropriate to allow the individual to participate in the TEB based on the evidence the individual provides, DoD has provided the Services with the tools to correct any possible government error or injustice in favor of the applicant. The complete DPSIT evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The advisory opinion does not address any of his issues he raised in his application. He feels these issues are the crux of the entire matter. When he departed his last duty station on terminal leave, he never received any information that he needed to make the TEB transfer while on active duty. The Post 9/11 GI Bill is the primary reason he elected to retire when he did. It is his hope the Board will objectively consider his situation and the facts he has presented to make an informed decision. Had he known that transferring his education benefits had to be accomplished while he was still on active duty, he would have complied. He departed his last duty station (Japan) on 13 June 2009 and did not retire until 1 October 2009. He had plenty of time to apply had he known of this requirement. The applicant’s complete rebuttal is at Exhibit E. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: HQ USAF/A1PA does not provide a recommendation. A1PA states that members may have had the impression that being on active duty or in the Selected Reserve (SELRES) on the effective date of the law, 1 August 2009, was sufficient to “vest” them with the right to transfer benefits at some time in the future. Had those members sought clarification from an educational counselor, read the DoD or Air Force guidance that was very clear on that point, or had taken other measures to make timely decisions before their separation or retirement, they could have initiated a timely transfer of benefits. However, the Board could find that there was an injustice if the members were on active duty on 1 August 2009, were not personally counseled about the need to execute a transfer while serving in the Armed Forces, and did not have ready access to DoD and Air Force guidance because of their terminal leave status. The transfer date could be effective as early as 1 August 2009 and there would be no need to place the member on active duty since the TEB system allows for correction of the record by Air Force personnel. The complete HQ USAF/A1PA evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: A copy of the HQ USAF/A1PA evaluation was forwarded to the applicant on 2 August 2010, for review and comment within 30 days (Exhibit G). As of this date, this office has received no response. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice. While we note the steps the Air Force office of primary responsibility indicates were taken to inform eligible personnel of this new benefit, it appears that through no fault of the applicant he was not timely made aware of his eligibility and the steps necessary to transfer his benefits to his dependents. In addition we find no basis to question the applicant's account in this matter and do not find it reasonable that he would have knowingly elected not to pursue use of this important entitlement. Therefore, we elect to resolve any doubt in this matter in behalf of the applicant and recommend the records be corrected as indicated below. ______________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. On 30 September 2009 he elected to transfer his Post 9/11 GI Bill Educational Benefits to his dependents, effective 1 October 2009. b. Transfer of Post 9/11 GI Bill Educational Benefits is contingent upon the completion of the necessary paperwork, as indicated in the attached AFPC/DPSIT Memorandum, within 30 days. ______________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-00682 in Executive Session on 5 October 2010, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered for AFBCMR Docket Number BC-2010-00682: Exhibit A. DD Form 149, dated 17 Feb 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIT, dated 7 May 10. Exhibit D. Letter, SAF/MRBR, dated 14 May 10. Exhibit E. Letter, Applicant, 21 May 10. Exhibit F. Letter, HQ USAF/A1PA, dated 30 Jul 10. Exhibit G. Letter, SAF/MRBR, dated 2 Aug 10.