RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00563

XXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

He be allowed to transfer his Post-9/11 GI Bill Transfer of Education Benefits (TEB) to his dependents.

APPLICANT’S CONTENTIONS

He separated from active duty in July 2009.  At the time, the rules for transferring benefits were not well understood.  He was never informed of his ability to transfer his benefits by remaining on active duty until 1 August 2009 and committing to four additional years of service.  The Air Force Personnel Center published an article on guidance for transferring benefits two weeks after his separation from the Air Force.  He further states, precedence for this correction under these circumstances already exists by previous Board decision under AFBCMR Docket Number BC-2016-01784 (See info at Exhibit E).

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force captain (0-3).  

The applicant entered active duty on 28 May 2003.  On 13 July 2009, he resigned after serving 6 years, 1 month and 16 days total of active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

AFPC/DP3SA recommends denying the application.  There is no Defense Manpower Data Center (DMDC) record showing the applicant applied for TEB in 2009.  In accordance with (IAW) Directive Type Memorandum (DTM) 09-003, Post-9/11 GI Bill, Attachment 2, 3.i., members must submit a request to transfer benefits via the DMDC TEB website.  Additionally, IAW DTM 09-003, Attachment 2, 3.a., members are eligible to transfer benefits if service to the Armed Forces was on or after 1 August 2009.

By law and DoD guidance, the program for the transfer of benefits was enacted on 1 August 2009.  Additionally, 38 U.S.C., Section 3319 (f)(1) states: “an individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement only while serving as a member of the armed forces when the transfer is executed.”  The applicant separated prior to 1 August 2009 and is ineligible to transfer education benefits to dependents.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 25 August 2020 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP3SA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2020-00563 in Executive Session on 15 September 2020:

Mr., Panel Chair, AFBCMR
Mr., Panel Member
Mr., Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 19 December 2019.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP3SA, w/atch, dated 22 June 2020.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 25 August 2020.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.