RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03407

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

He be allowed to transfer his Post-9/11 GI Bill Educational Benefit to his dependents. 

APPLICANT CONTENDS THAT:

Transfer of Education Benefit (TEB) was not offered at the time of his retirement and he heard about the benefit years after he had retired.  He did not take action until his daughter was ready to attend college because he believed he was eligible since he served during the time.  He asks the Board to consider that he would have requested TEB had it been offered during his time in the Air Force.

He was advised by the Department of Veterans Affairs (DVA) he was not eligible for TEB because he was not on active duty to request the transfer.  This is an error and he requests the Board approve TEB.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant retired on 1 September 2005 in the grade of Master Sergeant (MSgt, E-7), he was credited with 20 years and 16 days of active duty service.

Transferability of Unused Education Benefits to Family Members. Subject to the provisions of DoDI 1341.13, Post-9/11 GI Bill, the Secretary concerned, to promote recruitment and retention in the Uniformed Services, may permit an individual eligible for Post-9/11 GI Bill educational assistance to elect to transfer to one or more of his or her family members all or a portion of his or her entitlement to such assistance.   Any service member on or after 1 August 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request to transfer that entitlement under this section, may transfer that entitlement provided he or she has at least six years of service in the Military Services (active duty or Selected Reserve), National Oceanic and Atmospheric Administration Commissioned Officer Corps (NOAA) Corps, or Commissioned Corps of the Public Health Service (PHS) on the date of approval and agrees to serve four additional years in the Military Services, NOAA Corps, or PHS from the date of election.

Per DODI 1341.13, an individual approved to transfer entitlement to education assistance may transfer such entitlement only while serving in the Military Services (active duty or Selected Reserve).  

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D.    

AIR FORCE EVALUATION:

AFPC/DPSIT recommends denial.  The applicant retired effective 1 September 2005.  By law and DOD regulations, the program for TEB started on 1 August 2009.  Per 38 U.S.C. § 3319(f)(1), “An individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed.”  The applicant is ineligible for TEB to his dependents.  

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

AFPC/JA concurs with the recommendation of AFPC/DPSIT to deny relief.  According to the plain language of law in 38 U.S.C. § 3319(f)(1), the applicant is not permitted to transfer his entitlement to the Post-9/11 GI Bill as he is no longer on active duty.  This outcome is consistent with DODI 1314.13 and AFI 36-2649, Voluntary Education Program; both indicate that individuals who are entitled to Post-9/11 GI Bill benefits are eligible for TEB if they are actually in the Armed Forces as of 1 August 2009.  Moreover, the stated purpose of the transferability provision is to “promote recruitment and retention in the Uniformed Services.”  Permitting members who are no longer serving in the Air Force for TEB does not fulfill the purpose of the entitlement.

A complete of the AFPC/JA evaluation is at Exhibit D.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 19 February 2016 for review and comment within 30 days (Exhibit E).  As of this date, no response has been received by this office.

FINDINGS AND CONCLUSIONS OF THE BOARD:

Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice.  We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  While the applicant claims a date of discovery of less than three years prior to receipt of the application, we believe a reasonable date of discovery was more than three years prior to receipt of the application.  Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application.  Accordingly, we find the application untimely.

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-2015-03407 in Executive Session on 29 September 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03407 was considered:

	Exhibit A.  DD Form 149, dated 6 August 2015.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSIT, dated 7 December 2015.
	Exhibit D.  Memorandum, AFPC/JA, dated 28 January 2016.  
	Exhibit E.  Letter, AFBCMR, dated 19 February 2016.

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.