RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00917 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her records be corrected to allow her to transfer her Post 9/11 GI Bill benefits to her dependents. _________________________________________________________________ APPLICANT CONTENDS THAT: She was not given proper counseling on the requirements for transferring her benefits prior to her retirement. She would have extended her retirement or reenlisted had she been told she needed to be on active duty to qualify for the program. In support of her request, the applicant provides copies of a letter from the Department of Veterans Affairs, an Application for Uniformed Services Identification Card DEERS Enrollment Form, and a Napa Valley College verification letter. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: Available records retrieved from the Military Personnel Data System (MilPDS) reflect the applicant retired on 1 January 2010. Post-9/11 GI Bill: Any member of the Armed Forces (active duty or Selected Reserve, officer or enlisted) on or after August 1, 2009, who is eligible for the Post-9/11 GI Bill, and: • Has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election. • Has at least 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 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 August 1, 2009, through August 1, 2013. A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of reserve service. • For those individuals eligible for retirement on August 1, 2009, no additional service is required. • For those individuals who have an approved retirement date after August 1, 2009, and before July 1, 2010, no additional service is required. • For those individuals eligible for retirement after August 1, 2009, and before August 1, 2010, 1 year of additional service after approval of transfer is required. • For those individuals eligible for retirement on or after August 1, 2010, and before August 1, 2011, 2 years of additional service after approval of transfer are required. • For those individuals eligible for retirement on or after August 1, 2011, and before August 1, 2012, 3 years of additional service after approval of transfer required. _________________________________________________________________ AIR FORCE EVALUATION: HQ AFRC/A1K recommends denial since 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 transfer of benefits based on the evidence the individual provides, the Department of Defense (DoD) has provided the Service with the tools to correct any possible government error or injustice in favor of the applicant. The complete HQ AFRC/A1K 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 4 June 2010 for review and comment within 30 days (Exhibit C). As of this date, this office has not received a response. _________________________________________________________________ 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 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 D. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 4 August 2010 for review and comment within 30 days (Exhibit E). As of this date, this office has not received a 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 she was not timely made aware of her eligibility and the steps necessary to transfer her benefits to her dependents. In addition we find no basis to question the applicant's account in this matter and do not find it reasonable that she 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 31 December 2009, she elected to transfer her Post 9/11 GI Bill Educational Benefits to her dependents, effective 1 January 2010. b. Transfer of Post 9/11 GI Bill Educational Benefits is contingent upon the completion of the necessary paperwork within 30 days as indicated in the attached letter from HQ AFPC/DPSIT. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-00917 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: Exhibit A. DD Form 149, dated 1 Mar 10, w/atchs. Exhibit B. Letter, HQ AFRC/A1K, dated 16 May 10. Exhibit C. Letter, SAF/MRBR, dated 4 Jun 10. Exhibit D. Letter, HQ USAF/A1PA, dated 30 Jul 10. Exhibit E. Letter, SAF/MRBR, dated 4 Aug 10.