RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01487 XXXXXXXX COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: He be allowed to transfer his Post-9/11 GI Bill benefits (TEB) to his dependent. APPLICANT CONTENDS THAT: He originally submitted his TEB in 2007 and was notified by AFPC that it was lost until 2009. He then submitted another TEB and received an approved waiver of the TEB obligation end date, which allowed him to retire voluntarily and keep the TEB benefit. He inquired several times with both AFPC and the VA to ensure he would have his full Post-9/11 GI Bill benefit and the ability to transfer to his dependents before retiring in Jul 12. This was confirmed multiple times by the AFPC TEB Educational Service Department. If the waiver was not approved, he would not have retired 90 days prior to his original obligation date of Oct 12 and would have gladly continued serving to ensure he could transfer his benefits. There was no reason for him to believe at any time that the waiver was disapproved or that he would not receive the TEB. Examiner’s Note: The VA Benefits website Fact Sheet on Post 9/11 Transferability, dated 28 Apr 09, indicates that “Applications for transferability will start on 29 Jun 09. However, the effective date of any transfer will be no earlier than 1 Aug 09, regardless of application date.” (The Fact Sheet is attached at Exhibit B and was pulled from an embedded word document in the most current VA fact sheet on the GI Bill located at: http://www.benefits.va.gov/GIBILL/docs/factsheets/Transferability_Factsheet.pdf The Board should find it in the interest of justice to consider his untimely application because he was told everything for his TEB was in-order, until recently when he tried to transfer the benefits to his son on 4 Apr 14. In support of his appeal, the applicant provides a personal letter to the board; an e-mail, dated 11 Mar 14, from the Total Force Service Center (TFSC) stating that his TEB was approved on 9 Oct 09; the original Statement of Understanding (SOU) form he signed and submitted on 9 Oct 09; a blank, but updated version of the SOU, which shows added information due to the confusion with the old form by ensuring initials and dates are clearly spelled out; a copy of his DD FM 214, Certificate of Release or Discharge from Active Duty; and a copy of his retirement orders. Received on 23 May 14, the applicant submitted correspondence regarding a congressional inquiry, which he requested be added to his application. The documents indicate that the Secretary of the Air Force (SAF) Legislative Liaison (LL) Office responded to the inquiry, stating that “In the course of approving his retirement application, the Air Force waived the Active Duty Service Commitment (ADSC); however, the Air Force had no authority to treat the 3-year service obligation as "complete" prior to 6 Oct 12, unless the member had one of the circumstances recognized by the Department of Veterans Affairs, e.g., disability or hardship.” In response to this letter the applicant stated that he is in fact a disabled veteran and attached VA documentation attesting to this fact. Examiner’s Note: The applicant states that he is a disabled veteran; however SAF/LL is referring to AFI 36-2306, Para A9.18.8.5. in regards to the exceptions for allowing transfer, which states, “Discharge or release from active duty for a medical condition that pre-existed the service of the member and was not service connected.” In this respect the applicant voluntarily separated and was not discharged for a medical condition or disability. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: During the events under review, the applicant was serving in the Regular Air Force in the grade of Lieutenant Colonel (O-5). On 7 Oct 09, the applicant’s TEB was approved and he incurred a 3-year ADSC to 6 Oct 12. On 5 Jul 11, according to a printout from the AFPC Right Now Technology (RNT) system, the applicant submitted a request for a Retirement Eligibility Check. On 6 Jul 11, the RNT system shows the applicant received a message from the TFSC through the RNT system, indicating that he has a GI Bill benefit ADSC of 6 Oct 12 and a PCS ADSC of 17 Sep 12. In regards to the GI Bill ADSC, the message states that if approved, “the VA may treat any benefits paid to dependents as an overpayment and may collect the amount of the overpayment from the service member…If submitting a waiver request…documentation should also include a statement that you have contacted the VA and fully understand the effect a waiver of this ADSC has on your Post-9/11 GI Bill transferability option.” On 12 Jul 11, the applicant submitted his retirement application, requesting an effective date of 1 Jul 12. It indicates he submitted a waiver request for the “Best Interest of the Air Force” and in the justification comments he stated “ADSC waiver based on GI Bill Transfer Benefits under AF FY 11 program.” The application was routed to his commander for approval, which he approved and indicated a “N/A” in reference to the request for a waiver. On 1 Aug 11 and 8 Aug 11, according to the RNT system, the applicant received messages stating “we received your justification to waive your GI Bill ADSC, but you also need to provide justification to waive your PCS ADSC. Your justification is also not signed properly.” On 6 Sep 11 the applicant’s retirement was approved. On 17 Nov 11, the RNT system shows the applicant made an additional request to change his retirement date to 1 Oct. In response, the TFSC stated that he would need to submit a change withdraw request through secure apps in the Virtual MPF (vMPF). According to his DD FM 214, Certificate of Release from Active Duty, the applicant retired from the Regular Air Force effective 30 Jun 12, having served 20 years and 9 days of active service. The narrative reason for his separation was “Voluntary Retirement: Sufficient Service for Retirement.” The applicant’s Total Active Federal Military Service Date (TAFMSD) is 22 Jun 92. In accordance with AFI 36-2306, Para A9.18.1.4.5. “For those members eligible for retirement after 1 Aug 11, and on or before 1 Aug 12, three years of additional service from the date of request is required.” Based on his TAFMSD, his retirement date, and the date he initially submitted the application, the applicant would have needed to serve a period of approximately three additional months to meet the ADSC obligation required for TEB. 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 C. AIR FORCE EVALUATION: AFPC/DPSIT recommends denial. The applicant’s DD Form 214 reflects a Voluntary Retirement. In accordance with AFI 36-2306, attachment 9, para A9.18.8.5.3, none of the exceptions for failure to complete service agreement fell into the parameters of the applicant's retirement status. Additionally, based on RNT communications in 2009 and the TEB Statement of Understanding signed by the applicant, he was aware he must fulfill his previously agreed upon TEB obligation to retain the benefit. There is only evidence that the applicant was advised that their TEB ADSC must be waived so that they could retire on the date requested. The applicant voluntarily chose retirement with an effective date of 30 Jun 12, which left him three months short of the obligation end date of 6 Oct 12; therefore, he is ineligible for TEB. If the Board finds that an injustice has occurred, AFPC/DPSIT personnel will update the obligation end date to the date of separation, and the member will regain TEB benefits. A complete copy of the AFPC/DPSIT evaluation, with attachments, is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation, was forwarded to the applicant on 4 Aug 14 for review and comment within 30 days (Exhibit D). The applicant refutes that the main point of his contention is the original TEB was submitted well before his waiver or commitment would have been necessary, but it was lost by AFPC. Additionally, there are many facts missing from the AFPC RNT database, to include phone calls and e-mails concerning his distinct request to confirm that his TEB benefits and the required waivers were submitted and approved. He understands that communication and our automated systems are not perfect, but in this case, he requests the board make an exception in granting his request. As he mentioned at the onset, he would have never voluntarily retired three months early if he would have known that his TEB benefit was not approved. The applicant also provides a Memorandum for Record, dated 30 Aug 14, from his acting squadron commander who was coordinating with AFPC concerning his Post 9/11 GI Bill at the time the applicant made the request. The commander strongly recommends the BCMR approve his request, and validates the applicant’s contentions and also states the applicant would have not voluntarily retired prior to Oct 12, unless the waiver was processed for his Post 9-11 GI Bill TEB. A complete copy of the applicant’s rebuttal, with attachments, is at Exhibit E. 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 that the applicant has not been the victim of an error or injustice. Furthermore, there is no basis for the Board to consider the applicant’s main contention, that he initially submitted his TEB in 2007 and it was lost by AFPC. In this regard the TEB program was not established until 1 Aug 09, making it impossible for the applicant to even submit an application. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. 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-2014-01487 in Executive Session on 23 Mar 15, under the provisions of AFI 36-2603: XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-01487 was considered: Exhibit A. DD Form 149, dated 4 Apr 14, w/atchs. Exhibit B. Master Personnel Records Exhibit C. Letter, AFPC/DPSIT, dated 13 Jun 14 w/atchs. Exhibit D. Letter, SAF/MRBR, dated 4 Aug 14. Exhibit E. Applicant’s Rebuttal, dated 30 Aug 14, w/atchs.