RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2013-04098
		
						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His records be corrected to show he elected and was approved for transfer of his Post-9/11 GI Bill Education Benefits (TEB) to his dependents.

APPLICANT CONTENDS THAT:

He was not informed about the TEB process or given the opportunity to make an election prior to being involuntarily transferred to the Retired Reserves.  

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

STATEMENT OF FACTS:

The applicant is a commissioned officer who initially entered the Regular Air Force on 31 May 89.  

On 1 Apr 01, the applicant was released from active duty with an honorable characterization of service, and was credited with 11 years, 10 months, and 1 day of active duty service.

On 2 April 01 the applicant was appointed in the Air Force Reserve in the grade of captain, O-4. 

On 12 Jan 04, the applicant’s application for Ready Reserve Assignment, USAFA Admissions Liaison Officer (ALO) was approved by the Commander, 446 Air Wing, USAFR.  

On 13 Jul 04, the applicant was assigned to the Air Reserve Personnel Center, Denver, CO.  

On 19 Aug 09, the applicant received notification of his Second Deferral for Promotion.  Due to his second deferral for promotion, he would be automatically transferred to the Retired Reserve, with an adjusted mandatory separation date (MSD) of 1 Mar 10.  

On 1 Mar 10, the applicant was relieved from his, then, current assignment, assigned to the Retired Reserve Section, and placed on the USAF Reserve Retired List awaiting pay at age 60 (24 November 2024).  

On 25 Mar 14, the applicant submitted his rebuttal to the Air Force Evaluation, and requested an extension of time to provide additional evidence supporting his requested relief (Exhibit E).  

On 8 Apr 14, AFBCMR sent the applicant a letter advising him his application for correction of his military records, dated 27 Aug 13, was administratively closed as requested and his case will remain closed until such time as he indicates he is ready to proceed (Exhibit F).  

On 4 Jun 15, the applicant submitted a request to proceed with his case.  Included with this request he refutes virtually every point made by ARPC/DPTT’s 5 Feb 14 Evaluation.  In support of his response, he provided: Service History Summary; statements by two Academy Liaison Officers (ALOs) (his position prior to retirement); retirement package (no TEB information); statute, Directive-Type Memorandum (DTM), and Air Force Instruction (AFI) excerpts applicable to the matter in question (Exhibit G). 

The applicant served in active duty statuses for an aggregate period of over 90 days since 11 Sep 01; therefore, upon his date of assignment to the Retired Reserve Section, he was entitled to benefits under the Post 9/11 GI Bill program in his own right.

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force office of primary responsibility (OPR), which are included at Exhibits C and H.

AIR FORCE EVALUATION:

ARPC/DPTT recommends denial, indicating there is no evidence of an error or injustice.  Post-9/11 GI Bill, Chapter 33, became effective 1 Aug 09 based on Post-9/11 Veterans Education Assistance Act of 2008.  It is the result of Public Law No. 110-252 signed by the President on 30 Jun 08.  Section 3319 (f) (I) states in part that an individual “...may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed.” (Atch 2).  In accordance with (IAW) Directive Type Memorandum (DTM) 09-003, Post-9/11 GI Bill, a member of the Armed Forces is defined as: Those individuals serving on active duty or in the Selected Reserve.  The applicant was designated as Category E on 13 Jul 04 (Atch 3), and was not a member of the Selected Reserve.  His last day of participation was 16 May 09 (Atch 4), prior to the Post-9/11 GI Bill effective date of 1 Aug 09, and therefore he was never eligible to transfer benefits.  By law, the member was required to be active duty or Selected Reserve on l Aug 09.  

A complete copy of the AFPC/DPTT evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes he ever received pre-separation counseling on the benefits under the Post-9/11 GI Bill, and he argues he was on active duty 26 Aug 09, performing annual training at Fairchild AFB, WA.  In support of his contentions he submitted a copy of his Reserve Component Periodic Health Assessment (RCPHA), and a copy of DTM 09-003, indicating the requirement for pre-separation counseling on TEB.  Also, he requested an extension of time to provide additional evidence in support of his request.  

A complete copy of the Applicant’s Response to the Air Force Evaluation is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION:

ARPC/DPTT recommends denial, indicating there is no evidence of an error or injustice.  They reiterate their previous evaluation’s position that at no time after 1 Aug 09 was the applicant a member in a Selected Reserve status to be eligible to transfer Post-9/11 GI Bill benefits.  They opine the law does state that information will be provided to members of the Armed Forces (Atch 6).  The law does not define in what format the information will be provided, by which agency, or how receipt of said information is to be documented or if it needs to be documented at all.  As early as Jul 09, the Department of Defense had information on their web page (Atch 7) explaining the transfer process, providing checklists, and applications. The Air Reserve Personnel Center also had complete information on the ARPC web page including how to contact ARPC for individual counseling.  Both ARPC and AFRC provided NOTAMs and checklists (Atchs 8, 9, and 10) to the Air Reserve Command.  The Veterans Administration had an extensive web page that included not only information on eligibility but comparison tools with other GI Bill programs.  

A complete copy of the ARPC/DPTT evaluation is at Exhibit H.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The applicant refutes virtually every point made by the OPR arguing that had he been informed or briefed on TEB requirements prior to retirement, he could have elected to perform additional duty on Military Personnel Appropriation (MPA) orders prior to being transferred to the retired list 1 Mar 10.  As an USAFA ALO he was afforded the ability to perform qualifying active duty for pay on MPA orders after 1 Aug 09.  The OPR’s citing of the existence of DoD, ARPC, and VA websites with information on the Post-9/11 GI Bill benefits/requirements, does not satisfy the specific requirements of DTM 09-003, requiring services “Provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly.”  He contends the TEB program was in a state of flux in its early existence following implementation, and for this reason, the AFBCMR has granted broad latitude to other individuals not sufficiently briefed on Post-9/11 GI Bill benefits, and ability to transfer them.  In support of his response, the applicant provides copies of 10 AFBCMR TEB cases, where the Board granted the requested relief.  While each case had unique details, the common legal standard the Board used in concluding each case with regard to the existence of sufficient information that “it was reasonable to believe that had the applicant been properly briefed on the TEB, he would have requested to transfer his education benefits before he retired.”  

A complete copy of the Applicant’s Response to the Additional Air Force Evaluation is at Exhibit J.  

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  After a thorough review of the evidence of record and the applicant’s complete submission, to include his rebuttals, the Board determined sufficient relevant evidence has been presented to demonstrate the existence of error or injustice that warrants relief.  The Board notes the comments of Air Force office of primary responsibility (OPR) indicating that relief should be denied, however, we are persuaded by the applicant’s account in this matter.  We note the applicant was eligible and entitled to benefits under the Post 9/11 GI Bill program in his own right having served in active duty statuses for an aggregate period of over 90 days since 11 September 2001.  Therefore, we do not find it reasonable that he would have knowingly not elected to complete the requirements for use of this important entitlement for his dependents.  In view of this, the Board believes that in the interest of justice, the record should be corrected as indicated below.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

a.  By competent authority, on 28 August 2009, he was voluntarily ordered to active duty with the Air Force Reserve on Reserve Personnel Appropriation (RPA) orders for one day.

b.  On 28 August 2009 he elected to transfer his Post-9/11 GI Bill benefits to his dependents.  

The following members of the Board considered AFBCMR Docket Number BC-2013-04098 in Executive Session on 17 Nov 16, under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-04098 was considered:

	Exhibit A.  DD Form 149, dated 27 Aug 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, ARPC/DPTT, dated 5 Feb 14, w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 24 Feb 14.  
	Exhibit E.  Letter, Applicant, dated 25 Mar 14.
	Exhibit F.  Letter, AFBCMR, dated 8 Apr 14.
	Exhibit G.  Letter, Applicant, dated 4 Jun 15.  
	Exhibit H.  Memorandum, ARPC/DPTT, received 12 Aug 16, 
			  w/atchs.
	Exhibit I.  Letter, SAF/MRBR, dated 19 Aug 16.  
	Exhibit J.  Letter, Applicant, dated 15 Sep 16, w/atchs.  

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.
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