RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-02253

						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

He be allowed Transfer of Educational Benefits (TEB) to his dependents.

APPLICANT CONTENDS THAT:

He was involuntarily forced to retire at 100% disability on 12 Oct 04 due to a disability caused during surgery by Air Force medical professionals.  Had he not been forced to retire, he would have transferred the education benefits to his children.  He cannot function enough to use the education benefits himself and not being able to transfer them to his dependents would cause a hardship.

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

STATEMENT OF FACTS:

On 13 Oct 04, the applicant was placed on the Temporary Disability Retired List (TDRL) and was credited with 15 years, 5 months, and 29 days of active service.

On 16 Nov 06, the applicant was removed from the TDRL and permanently retired with a compensable percentage of 100% for physical disability.  

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/DP3SA recommends denial indicating there is no evidence of an error or an injustice.  In accordance with DoD Instruction 1341.13, Enclosure 3 and AFI 36-2649, Voluntary Education Program, Attachment 13, A13.18.1, members are eligible to transfer benefits if service to the Armed Forces was on or after 1 Aug 09.  The applicant retired effective 13 Oct 04 and is ineligible to transfer educational benefits to dependents.

A complete copy of the AFPC/DP3SA evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes virtually every point made by the OPR and argues that prior to the surgery which debilitated him and forced him to retire, he was in great health and fulfilled all his military duties.  His intent was to serve a minimum of 26 years.  He was briefed upon retirement that the Air Force would pay for his children’s college education because he was being retired with 100% disability.  Furthermore, after the TEB program was implemented, he was told on three separate occasions he was eligible.  Had he been told the correct information, he would not have taken the steps to get his daughter into the college of her choice because he would not have been able to afford it.  The sloppiness on the operating table resulted in his 100% disability, removed his ability to work and forced him to retire before serving 20 years, resulting in the loss of retirement pay.  The applicant also notes his out-processing checklist shows he would not have used the education benefits himself and if able, he would’ve transferred them to his children.  He understands why AFPC recommended denying his request, but feels he was wronged by the Air Force and implores the Board to correct the injustice done to him and his family.

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.  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 RECOMMENDS 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-2016-02253 in Executive Session on 17 Aug 17 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 25 May 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP3SA, dated 20 Sep 16.
	Exhibit D.  Letter, AFBCMR, dated 30 Jan 17, w/atch.
	Exhibit E.  Letter, Applicant, undated. 

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.