RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01151 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to allow him to transfer his Post-9/11 GI Bill benefits to an eligible dependent. _________________________________________________________________ APPLICANT CONTENDS THAT: When he started terminal leave on 26 June 2009, there were no procedures established to transfer Post-9/11 benefits. Information about transfer of benefits (TEBs) was incomplete when he left his active duty station, and had he been on duty when the application process was released, he would have applied for TEBs before he retired. In support of the appeal, the applicant provides a copy of his DD Form 214, Certificate of Release or Discharge from active Duty. The applicant’s complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant was commissioned a second lieutenant in the Regular Air Force on 19 April 1989, and was progressively promoted to the grade of lieutenant colonel. He retired in that grade on 1 October 2009, after serving 20 years, 5 months, and 12 days of active service. Post-9/11 GI Bill: Any member of the Armed Forces (active duty or Selected Reserve, officer or enlisted) on or after 1 August 2009, who is eligible for the Post-9/11 GI Bill, and: • Has at least six years of service in the Armed Forces on the date of election and agrees to serve four additional years in the Armed Forces from the date of election. • Has at least ten years of service in the Armed Forces (active duty and/or selected reserve) on the date of election, is precluded by either standard policy (service or DoD) or statute from committing to four additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute, or • Is or becomes retirement eligible during the period from 1 August 2009, through 1 August 2013. A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of reserve service. • For those individuals eligible for retirement on 1 August 2009, no additional service is required. • For those individuals who have an approved retirement date after 1 August 2009, and before 1. July 2010, no additional service is required. • For those individuals eligible for retirement after 1 August 2009, and before 1 August 2010, one year of additional service after approval of transfer is required. • For those individuals eligible for retirement on or after 1 August 2010, and before 1 August 2011, two years of additional service after approval of transfer are required. For those individuals eligible for retirement on or after 1 August 2011, and before 1 August 2012, 3 years of additional service after approval of transfer is required. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIT recommends denial. DPSIT states that since Title 38, USC, Chapter, section 3319(f)(1), states that “an individual…may transfer such entitlement only while serving as a member of the Armed Forces when the transfer is executed.” they can only recommend denial. DPSIT states that prior to TEB’s activation, program information and guidance was made available through the Air Force Personnel Center (AFPC), the Department of Veterans Affairs (DVA), and the services to make sure that every eligible servicemen understood the process for transferring benefits. DPSIT indicates that in discussing this issue with education counselors and education service officers, they conveyed that many servicemembers thought they were eligible for the transfer as long as they were serving on active duty as of 1 August 2009, and did not realize that participating in the program required they transfer the benefits while serving on active duty or selective reserve status. The complete AFPC/DPSIT evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: At the time he began terminal leave, the Air Force had not published policy on TEBs to dependents. However, information available prior to the July policy release indicated he would be eligible for the new benefits as long as he was still on active duty on 1 August 2009. There was no indication that TEB to dependents would be restricted to those who filled out the application while still on active duty. The information available prior to the July policy release indicated he would be eligible for the TEBs as long he was still on active duty on 1 August 2009. Had he been notified of the new policy, he would have completed the required documents to TEB to his dependents. The applicant’s complete response, with attachments, is at Exhibit E. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: HQ USAF/A1PA does not provide a recommendation. A1PA states that members may have had the impression that being on active duty or in the Selected Reserve (SELRES) on the effective date of the law, 1 August 2009, was sufficient to “vest” them with the right to transfer benefits at some time in the future. Had those members sought clarification from an educational counselor, read the Department of Defense (DoD) or Air Force guidance that was very clear on that point, or taken other measures to make timely decisions before their separation or retirement, they could have initiated a timely transfer of benefits. However, the Board could find that there was an injustice if the members were on active duty on 1 August 2009, were not personally counseled about the need to execute a transfer while serving in the Armed Forces, and did not have ready access to DoD and Air Force guidance because of their terminal leave status. The transfer date could be effective as early as 1 August 2009, and there would be no need to place the member on active duty since the TEB system allows for correction of the record by Air Force personnel. The complete HQ USAF/A1PA evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 2 August 2010, for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit G). _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice. While we note the steps the Air Force office of primary responsibility indicates were taken to inform eligible personnel of this new benefit, it appears that through no fault of the applicant he was not timely made aware of his eligibility and the steps necessary to transfer his benefits to his dependents. In addition we find no basis to question the applicant's account in this matter and do not find it reasonable that he would have knowingly elected not to pursue use of this important entitlement. Therefore, we elect to resolve any doubt in this matter in behalf of the applicant and recommend the records be corrected as indicated below. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. On 31 August 2009 he elected to transfer his Post-9/11 GI Bill Educational Benefits to a dependent, effective 1 September 2009. b. Transfer of Post-9/11 GI Bill Educational Benefits is contingent upon the completion of the necessary paperwork as indicated in the attached letter from AFPC/DPSIT within 30 days. _________________________________________________________________ The following members of the Board considered Docket Number BC- 2010-01151 in Executive Session on 5 October 2010, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 5 Mar 10, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIT, dated 7 May 10. Exhibit D. Letter, SAF/MRBR, dated 21 May 10. Exhibit E. Letter, Applicant, dated 31 May 10, w/atchs. Exhibit F. Letter, USAF/A1PA, dated 30 Jul 10. Exhibit G. Letter, SAF/MRBR, dated 2 Aug 10.