RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-00061 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: He be allowed to transfer his Post-9/11 GI Bill educational benefits (TEB) to his dependents. APPLICANT CONTENDS THAT: He failed to transfer his benefits in 2009 because he was deployed and unfamiliar with the laws. When he attempted to transfer the benefits in 2011, he was told that he would incur an additional four year active duty service commitment (ADSC) which he was unwilling to do since he was two years from his retirement eligible date. He ended up serving five additional years on active duty after the initial transfer eligibility. He believes he has met the purpose and intent of 38 United States Code (U.S.C.) Section 3319 and should be allowed to transfer the remaining GI Bill benefit to his children. The applicant’s complete submission, with attachment, is at Exhibit A. STATEMENT OF FACTS: The applicant is a former member of the Air Force who served from 21 June 1993 through 31 July 2014. He retired in the grade of lieutenant colonel and was credited with 21 years, 1 month and 10 days of active duty service. According to the DD Form 2648, Preseparation Counseling Checklist for Active Component (AC), Active Guard Reserve (AGR), Active Reserve (AR), Full Time Support (FTS), and Reserve Program Administrator (RPA) Service Members, the applicant declined education benefits counseling on 27 May 2014, which was, according to a hand written note on the checklist, within 89 days from the date of his requested retirement date. 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/DPSIT recommends denial. The applicant’s Total Active Federal Military Service Date (TAFMSD) is 21 June 1993. According to the Defense Manpower Data Center (DMDC) application, there is no record the applicant applied for TEB at any time. Based on his TAFMSD, he would have incurred a 4 year active duty service commitment. There is no record in DMDC the applicant applied for TEB, nor did he inquire with the Total Force Center according to Right Now Technology regarding his TEB status. Without a request, TEB cannot be approved. The complete AFPC/DPSIT evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant believes the Air Force recommendation does not address the central argument of his request. He also argues the TEB should be allowed because it would impose no undue burden to the Air Force and would be consistent with the spirit of the law as written in 38 U.S.C. 3319, Authority to Transfer Unused Education Benefits to Family Members. The applicant believes his application should be approved because 38 USC Code Section 3319 specifically states, "The purpose of the authority in [this code] is to promote recruitment and retention in the uniformed services..." Had he fully understood the law and service provisions while deployed in the summer of 2009, he would have transferred his benefits to his three children at that point and gladly incurred an additional ADSC. Since he actually served on active duty through 1 August 2014, a total of five additional years after the Post 9/11 GI Bill went into effect, and one year more than the ADSC he would have incurred, he believes he met the purpose and intent of 38 U.S.C. 3319 and should be allowed to transfer the remaining 9/11 GI Bill education benefits to his three children. While going through USAF retirement counseling with Department of Veteran's Affairs (DVA) representatives at Nellis AFB NV in June 2014, he was notified by DVA personnel that it might be possible to receive an exemption from USAF policy that states a member must incur an additional four year ADSC at the time of the transfer election. When he checked with the DVA via phone, he was told the same. He contacted AF Personnel Center in July and August 2014 and was told there was no possibility of an exemption to service policy and his only recourse was to submit an application to the Board. While he fully admits to never applying for TEB for the reasons previously stated, he does not understand why eligibility could not be determined. His record shows he was an active duty member of USAF in the summer of 2009 when the Post 9/11 GI Bill took effect and that he retired almost five years later. He is ineligible for TEB due to not applying per AF policy while on active duty and now being retired; however, the law (38 USC sec 3319) also states in subsection (a) (2) that: "The purpose of the authority in paragraph is to promote recruitment and retention in the uniformed services. The Secretary concerned may exercise the authority for that purpose when authorized by the Secretary of Defense in the national security interests of the United States." Since he was retained an additional five years after the passage of the 9/11 GI Bill law, he feels he met the intent of the legislation and the USAF has the discretion under that law to allow the TEB. Ultimately, he believes this is a major part of the reason Congress wrote and approved this legislation for service members meeting the eligibility requirements and being retained for a minimum of 10 years on active duty (21 years in his case) and four years past the date the law took effect. Denial of this TEB seems to be simply an administrative and bureaucratic response tantamount to simply saying, "those are the rules" and imposing a penalty on him and his family for failing to understand the transfer requirements, despite meeting the intent of the law to retain members on active duty an additional four years after eligibility. There is no discernible benefit to the Service or Nation for such a denial, while achieving several disadvantages such as former service member disillusionment and possible congressional dissatisfaction with such a decision. He respectfully requests the Board make an exception to AF policy and instructions and grant his application for TEB to his children. The applicant’s complete response, is at Exhibit E. 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. We took notice of the applicant’s complete submission in judging the merits of the case, to include his response to the Air Force office of primary responsibility (OPR). However, he has not provided substantial evidence which, in our opinion, successfully refutes the opinion and recommendation of the OPR. While the applicant contends he met the intent of the law by serving five years beyond the beginning of the program, that service does not constitute an active duty service commitment, which would have been required for the transfer. By the applicant’s own admission, he was within two years of his retirement eligibility date and was unwilling to incur the service commitment needed to affect the transfer of benefits. Therefore, we agree with the OPR and adopt their rationale as the basis for our conclusion and find that the applicant has not been the victim of an error or injustice. In the absence of evidence to the contrary, or evidence to show that he has been treated differently than others similarly situated, we find no basis to grant 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 issues 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-2015-00061 in Executive Session on 22 October 2015 under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-00061 was considered: Exhibit A. DD Form 149, dated 1 Jan 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSIT, dated 23 Jan 15. Exhibit D. Letter, SAF/MRBR, dated 6 Jul 15. Exhibit E. Letter, Applicant’s Response, dated 24 Jul 15.