RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01988 XXXXXXX COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ THE APPLICANT REQUESTS THAT: He be allowed to transfer his Post 9/11 GI Bill educational benefits to his children. ________________________________________________________________ THE APPLICANT CONTENDS THAT: At the time of his retirement, he was converting his Montgomery GI Bill (MGIB) to the Post 9/11 GI Bill and may have been misinformed or incorrectly advised about his Transfer of Education Benefits (TEB) to his dependent. He was told that he might be eligible for the TEB and that he should write a letter explaining the circumstances of his situation. The applicant’s complete submission is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 1 Jun 79, the applicant was commissioned in the Air Force Reserve. He was placed on extended active duty on 8 Aug 79. On 29 Feb 92, the applicant was released from active duty and transferred to the Individual Ready Reserve (IRR). The applicant served in the Air Force Reserve and the Air National Guard until his release on 16 Feb 03. On 17 Feb 03, the applicant was placed on extended active duty and remained on active duty until his retirement. His pay date was adjusted to 9 Jun 85 and his Total Active Federal Commissioned Service Date (TAFCSD) was adjusted to 15 Jun 89. Based on information from the Military Personnel Data System (MilPDS), the applicant was considered and nonselected for promotion to the grade of lieutenant colonel five times. On 14 Sep 06, the applicant was considered for continuation as a result of his second deferral for promotion and his Date of Separation (DOS) was established as 30 Jun 09. In accordance with AFI 36-2501, Officer Promotion and Selective Continuation, para 7.11.2., “continue majors until the last day of the month in which he or she is eligible to retire as an officer (normally upon completion of 20 years of total active military service)….” On 28 Jul 08, the applicant requested to retire and stated that he was applying to retire on his mandatory date of 1 Jul 09. On 30 Jun 09, the applicant was relieved from active duty, with a reason for separation of voluntary retirement: sufficient service for retirement. He retired on 1 Jul 09. Post-9/11 GI Bill: Any member of the Armed Forces (active duty or Selected Reserve, officer or enlisted) on or after 1 Aug 09, who is eligible for the Post-9/11 GI Bill, and: * Has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election. * Has at least 10 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 4 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 Aug 09 through 1 Aug 13. 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 Aug 09, no additional service is required. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIT recommends approval, noting there is previous precedent in BCMR cases to approve a member who retired between 1 Jul and 31 Jul 09 to have their retirement date changed to Aug 09 to facilitate TEB approval. Given the program was brand new and information was sporadic at best, it is reasonable to assume the member would have extended his retirement date a month to qualify for the TEB program, had they been advised properly. We recommend extending the member's retirement date to 1 Aug 09 so that the member's dependents can receive the TEB benefit. The complete DPSIT evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 19 May 13 for review and response. 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note the Air Force Office of Primary Responsibility (OPR) recommends correcting his retirement date to 1 Aug 09 due to miscounseling so he can qualify for the Post 9/11 TEB. However, according to the Directive Type Memo, dated 10 Sep 10, the TEB must be initiated while on active duty which means the applicant’s retirement date would need to be extended until 1 Sep 09, in order to qualify for TEB. Although there is precedent where the Board has extended others for 30 days when there was evidence of miscounseling, the circumstances in this case do not warrant similar relief. In this respect, it appears that due to the applicant’s nonselection for promotion to the grade of lieutenant colonel, he met a continuation board which resulted in a DOS of 30 Jun 09. Therefore, regardless of whether the applicant was miscounseled or not, since the continuation board established that he should be retired on his DOS, there is no basis to recommend his retirement date be changed to make him eligible to transfer his benefits. Additionally, the applicant has not provided any evidence to show that he was treated any differently than others similarly situated. Accordingly, we conclude the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. In the absence of evidence he was denied rights, to which he was entitled, we find no basis to recommend the relief sought in this application. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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-2013-01988 in Executive Session on 12 Mar 14 and 26 Jun 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 Apr 13. Exhibit B. Applicant’s Available Master Personnel Record. Exhibit C. Letter, AFPC/DPSIT, dated 1 May 13. Exhibit D. Letter, SAF/MRBR, dated 19 May 13. Panel Chair