RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-00006 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His record be corrected to reflect that he was relieved from active duty on 1 Aug 09, instead of 31 Jul 09, so that can be eligible to transfer his Post-9/11 GI Bill educational benefits. ________________________________________________________________ APPLICANT CONTENDS THAT: As a Title 32 Active Guard/Reserve (AGR) member he was not initially eligible for the Post-9/11 GI Bill program. AGRs were not eligible for the transfer of educational benefits at the time of his retirement. Had he known they would eventually become eligible when the law changed, he would have served the one additional day required to qualify to transfer his educational benefits. It is unfair that the law was changed after he retired and he missed the opportunity to use this great benefit by one day. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 31 Jul 09, the applicant was relieved from his reserve assignment as an AGR and retired on 1 Aug 09 under the provisions of AFI 36-3203, Service Retirements, and Title 10 USC 8914. According to Title 38 United States Code (USC), Chapter 33, service members are allowed to transfer unused educational benefits to their dependent spouses and children. Any member of the Armed Forces, active duty or Selected Reserves, officer, or enlisted, who, on or after 1 Aug 09, is eligible for the Post- 9/11 GI bill, has at least six years of service in the Armed Forces on the date of election, and agrees to serve a specified additional period of in the Armed Forces from the date of election, may transfer unused Post-9/11 benefits to their dependents. On 4 Jan 11, the President signed into law the Post-9/11 GI Bill Assistance Improvement Act of 2010. This change in the law expanded eligibility for the Post-9/11 GI Bill to include full- time active service performed by National Guard members under Title 32 USC “for the purpose of organizing, administering, recruiting, instructing, or training the National Guard; or under Section 502(f) for the purpose of responding to a national emergency.” Qualifying Title 32 service must have been performed on or after 11 Sep 01. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibits C. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1YR recommends denial, indicating there is no evidence of an error or injustice. The applicant was released from his AGR tour and retired from the ANG on 1 Aug 09. The Post 9/11 GI Bill benefit became effective on 1 Aug 09. At that time, AGR service under Title 32 USC 502(f) was not qualifying service for the Post-9/11 GI Bill. However, the passage of the Post 9/11 Veterans Educational Assistance Act of 2010 expanded eligibility for the Post 9/11 GI Bill to Title 32 AGR members. According to Directive-Type Memorandum (DTM) 09-003 – Post-9/11 GI Bill, dated 22 Jun 09, and AFI 36-2306, Voluntary Education Program, dated 13 Aug 10, an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement to the individual’s family member only while serving in the Armed Forces. While the passage of the Post-9/11 Veterans Educational Assistance Act of 2010, the applicant became eligible to participate in the Post-9/11 GI Bill in his own right; however, he is not eligible to transfer his benefits because he was not a member of the Armed Forces on or after 1 Aug 09 to effect the transfer. A complete copy of the NGB/A1YR advisory is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on DD MMM YY for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant argues that had he known that National Guard Active Guard Reserve (AGR) members would eventually become eligible for the Post-9/11 GI Bill, he would have delayed his retirement long enough to qualify to transfer his educational benefits to his dependents; however, we are not convinced the applicant is the victim of an error or injustice, or that he has been treated differently than those similarly situated. In this respect, we note there is no way the applicant, or any other similarly situated National Guard AGR, could have known the law would eventually change and, with this information from the future, decide to delay his retirement to earn the right to transfer benefits to which he was not yet entitled. While it is unfortunate that he was released from his AGR tour just one day short of attaining eligibility to transfer his benefits, the fact is he did not serve as a member of the armed forces on or after 1 Aug 09 in accordance with the provisions of the governing statute and the proximity of his service to the effective date of the program, no matter how close, does not, by itself, serve to make him the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-00006 in Executive Session on 9 May 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-00006 was considered: Exhibit A. DD Form 149, dated 17 Dec 11, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, NGB/A1YR, dated 11 May 12. Exhibit D. Letter, SAF/MRBR, dated 24 May 12. Panel Chair