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DEPARTMENT OF THE AIR FORCE
WASHINGTON DC

Office of the Assistant Secretary	JU N	1 6 2016

MEMORANDUM FOR EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
CORRECTION OF MILITARY RECORDS (AFBCMR)
SUBJECT:  AFBCMR Docket Number: BC-2015-01007
After carefully reviewing the circumstances of this case and the recommendation of the
.majority of the panel to grant the applicant's request to authorize him the Post-9/11 GI Bill Transfer of Eligibility Benefit (TEB), I cannot adopt its recmmendation.  The majority of the Panel determined the newness of the enabling.legislation in September 2009, when the applicant contends he first applied for TEB, and the confusion which initially surrounded the applicatio_n process was sufficient for them to believe it is more likely than not that through no fault of the applicant' s he was simply unsuccessful in transfening his benefits to his dependents. Further, they contend that it is reasonable to conclude he switched his Montgomery GI Bill Benefits to the Post-9/11 GI Bill Educational Benefits Program for the .sole purpose of transferring his benefits to his dependents. However, I agree with the minority of the panel in concluding that their determination is not supported by evidence in the record.

According to the minority member, the applicant provided no evidence whatsoever that he.attempted to transfer his benefits in September 2009 as he contends. Irrespective of this, he voluntarily retired under the Phase 2 Date of Separation (DOS) Rollback Program on
1 July 2012. Therefore, even if he had transferred his benefits, there is no way he could have served the requisite three-year active duty service corllmitment (ADSC) to retain the transferred benefits. In fact, allmembers volunteering for separation under the Phase 2 DOS Rollback Program were notified they would lose their TEB transferred benefits if they were unable to complete their related ADSCs.

I agree with the minority.  Therefore, in my view, the applicant has not met his burden of proof in demonstrating he is the victim of an'error or injustice.  Acc6rdingly, I decline to adopt the recommendation  of the majority of the panel and direct denial of the applicant's request.

This document contains information which must be protected IAW AFI33-332 and DoD Regulation  5400.11;Privacy Actof1974a$Amended Applies,anditisForOfficial UseOnly (FOUO).

RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-01007 COUNSEL:	NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
His original Sep 09 application for his Post-9/11 GI Bill Transfer of Educational Benefits (TEB) be approved.

APPLICANT CONTENDS THAT:
He completed the transfer process to qualify for TEB in Sep 09, but somehow the dependent transfer never happened. Since he had already completed his Bachelor’s degree, the only reason he would have converted to the Post-9/11 GI Bill was for TEB.

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

STATEMENT OF FACTS:
The  applicant  initially  entered  the  Regular  Air  Force  on
15 May 92.
On 1 Jul 12, the applicant voluntarily retired, and was credited with 20 years, 1 month, and 16 days of total active service.

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 indicating there is no evidence of an error or an injustice. The Department of Veterans Affairs (DVA) website states the Department of Defense (DoD) determines whether or not members can transfer benefits to dependents. In accordance with AFI 36-2306, Voluntary Education Program, the member would have incurred an active duty service commitment (ADSC) of 3 years from the date of his application for TEB. In addition, upon application approval he would have been required to sign a Statement of Understanding (SOU) agreeing to serve the additional three years.   The applicant did not sign an SOU or incur an

additional three-year ADSC. Further, the fact sheet for the 2012 Phase 2 Date of Separation (DOS) Rollback Program under which the applicant retired states “Airmen who leave the Air Force under this voluntary separation program without completing their Post- 9/11 GI Bill Active Duty Service Commitment forfeit the transferred benefit…” Therefore, the applicant would have forfeited approved TEB benefits. Finally, there is no evidence the member applied for the TEB program in Sep 09.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 31 Jul 15, for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:
1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was timely filed.
3.	A majority of the Board found sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After a thorough review of the evidence of record and the applicant’s complete submission, a majority of the Board believes the applicant is the victim of an error or injustice. While we note the comments of AFPC/DPSIT indicating that relief should be denied because the applicant’s records contain no official documentation substantiating the applicant applied for TEB in 2009, and that if he had been approved his TEB would have been revoked due to his selection under the FY12 Date  of Separation (DOS) Rollback Program, we believe a preponderance of the evidence substantiates corrective action is warranted. In this respect, given the newness of the enabling legislation in Sep 09 when the applicant contends he first applied for TEB, and the confusion which initially surrounded the application process, we believe it is more likely than not that through no fault of the applicant’s he was simply unsuccessful in transferring his benefits to his dependents. Moreover, we do not  find  it reasonable he would have knowingly switched from his existing educational benefits program to the Post-9/11 GI Bill Educational Benefits Program without fully intending to transfer his benefits to his dependents. As the OPR notes, if he had successfully transferred his entitlements, he would have incurred a 3 year ADSC. Therefore, we recommend the applicant’s records  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:

1.	On 1 August 2009, he elected to transfer his Post-9/11 GI Bill Educational Benefits to his eligible dependents.

2.	On 1 July 2012, he did not retire but continued to serve on active duty until retiring on 1 August 2012.

The following members of the Board considered AFBCMR Docket Number BC-2015-01007 in Executive Session on 14 Oct 15, under the provisions of AFI 36-2603:

Panel Chair Member Member

By a majority vote the Board voted to grant the application. --------- voted to deny the request and has declined to submit a minority report. The following documentary evidence was considered:

Exhibit A.	DD Form 149, dated 28 Feb 15, w/atch. Exhibit B.	Applicant's Master Personnel Records.
Exhibit C.	Memorandum, AFPC/DPSIT, dated 25 Mar 15, w/atchs. Exhibit D.	Letter, SAF/MRBR, dated 31 Jul 15.

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Office of the Assistant Secretary

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DEPARTMENT OF THE AIR FORCE
WASHINGTON DC

:tvfEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT: OCKET NO: BC-2015-01007
The majority of the Board recommends approval of the applicant's request to authorize him Post- 9/11 GI Bill Transfer of Educational Benefits (TEB).  Intheir view, given the newness of the enabling
·	legislation in Sep 09 when the applicant contends he first applied for TEB, and the confusion which initially  surrounded  the application process,  it is more  likely than not that tlu·ough no fault of the
applicant's he was simply unsuccessful in transferring his benefits to his dependents. Moreover, the majority did not find it reasonable the applicant would have lmowingly switched from his existing educational benefits program to the Post-9/11 GI Bill Educational Benefits Program without fully intending to transfer his benefits to his dependents. However, based upon the totality of the evidence, I believe the applicant's request should be denied.

While ..the majority of the Board elects to, essentially, give the applicant the benefit of doubt regarding bis claim be completed enrollment for the TEB in Sep 09, he does 11ot provide supporting
: documentation or, in my view, a credible explanation of why there is no record of his application. . I believe the Air Force QPR .has provided strong ration for disapproving the applicant's request. The most compelling issue raised in support of disapprovin.g this request is the fact the applicant was placed on notice that voluntary retirement under the 2012 Phase 2 DOSRollback program would result in loss of TEB benefits if the associated ADSC was not fulfilled. The applicant conveniently does not raise the issue of an ADSC in his application and there is no basis to assume he was miscounseled or otherwise had reason to believe he met the requirements for TEB. Given the lack of supporting evidence, and it must be noted the applicant has the burden of proof, establishes a precedent that sets a low bar of proof for the many applicants appealing to the Board O!!this issue. I have considered the majority view that the fact the applicant converted his Montgomery GI Bill Benefits to Post-9/11 GI Bill benefits was indicative of
·	his intent to transfer his benefits to his dependents. However, this standing alone simply does not validate intent as the majority accepts and, even if it did, the applicant's subsequent early retirement still overcomes this argument as he would have forfeited any eligibility, Again, I note the applicant has not addressed·at all why he believed he was eligible to transfer his benefits, and while there were problems in the early stages of the program I believe due diligence on the applicant's part would have revealed his lack of eligibility to transfer his benefits.

The applicant has failed to sustain his burden of showing himself to be the victim of error or injustice.  Therefore, it is in the best interest of tl1e Air Force to ove1iurn the vote of the majority to grant

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