ADDENDUM TO 
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-00940-2 

   						COUNSEL:  

HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

1.  His date of separation (DOS) be extended by two months so he qualifies for the Post-9/11 GI Bill Transfer of Educational Benefit (TEB).

2.  His unused Post-9/11 GI Bill educational benefits be transferred to his daughter.  

APPLICANT CONTENDS THAT:

When he retired at his mandatory separation date (MSD) on 1 Jun 09, it was two months prior to the implementation date for the Post-9/11 GI Bill TEB program of 1 Aug 09.  He was told by the Department of Veterans Affairs (DVA) he would be “grandfathered” into the program.  He could have reenlisted and served additional time in the enlisted ranks in order to qualify for TEB.  However, because he was misinformed by the DVA, he chose to retire at his MSD rather than serve in the enlisted ranks.  Because of the misinformation, he should be extended for two additional months on active duty and provided TEB benefits. 

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

RESUME OF THE CASE:

According to the documentation submitted by the applicant, on 12 Feb 15, the DVA reviewed the applicant’s request for relief and denied his request for TEB benefits stating the applicant “is not entitled to equitable relief under Sections 503(a) or 503(b) of  Title 38, U.S. Code.  (The Applicant) was not denied a benefit due to an error or the part of an employee of the Federal government, nor did he suffer a financial loss due to reliance on an incorrect decision by the Department of Veterans Affairs (DVA).”

On 14 Oct 15, the Board considered and denied the applicant’s original request to make the same corrections to his records.  In his original request, he contended rather than retiring on his mandatory separation date (MSD) before TEB was authorized, he could have remained in the Air Force by returning to the enlisted force to qualify for TEB, but the DVA told him he would be “grandfathered” into the program upon his retirement in Jun 09; and, based upon the incorrect information from the DVA, he retired on his MSD.  DoD published its Directive Type Memorandum concerning the Post-9/11 GI Bill on 23 Jul 09, after his inquiries about his eligibility, demonstrating how new the program was.  Both his Senator and Congressional Representative signed a letter of support asking for “equitable relief” for the applicant stating he “suffered loss as a consequence of reliance upon determination by the Department of eligibility or entitlement of benefits…” based upon Title 38, United States Code (USC) §503.  The DVA again denied his request after considering his letter from his Congressional members.  

After careful consideration of the applicant’s request and the available evidence of record, the Board determined the applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, States Code, Section 1552 and Air Force Instruction 36-2603. The Board was not persuaded the record raised issues of error or injustice which required resolution on the merits.  The Board determined it would not be in the interest of justice to excuse the applicant’s failure to file in a timely manner.  For an accounting of the facts and circumstances surrounding the applicant’s original request see the Record of Proceedings (ROP) at Exhibit F.

On 18 Sep 16, the applicant submitted a request for reconsideration of his original application, based on upon the same contentions submitted with his original application.  With his application, he submitted a lengthy personal statement outlining the process he went through to attempt to obtain TEB in May of 2009, and again contends he was told by the DVA he would be grandfathered into the program.  

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

THE BOARD CONCLUDES THAT:

In earlier findings, the Board determined the applicant’s application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  After careful reconsideration of the new information submitted in support of his appeal, we still do not believe it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner. 

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 application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely.

The following members of the Board considered AFBCMR Docket Number BC-2015-00940-2 in Executive Session on 21 Mar 18 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-00940-2 was considered:

	Exhibit F.  Original Record of Proceedings, dated 20 Oct 15. w/Exhibits A – E.
Exhibit G.  RECON DD Form 149, dated 18 Sep 16, w/atchs.

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