RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01589

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 was not informed of the process for transferring education benefits to his dependents prior to retirement.  He was incorrectly briefed on the requirements to transfer benefits.  He believes this to be an injustice.  He further states, precedence for this correction under these circumstances already exists by previous Board decision under AFBCMR Docket Number BC-2016-01784.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant retired on 1 Jan 10 in the grade of chief master sergeant (E-9).  He served 25 years, 9 months and 1 day of total active service.

There is no record in the Defense Manpower Data Center (DMDC) the applicant applied for TEB.  

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.  Without a request, eligibility for the program could not be established, as Directive-type Memorandum (DTM) 09-003, Post-9/11 GI Bill, Attachment 2, 3.a. and AFI 36-2306_AFGM1, Voluntary Education Program, 18i(3), cite the date of request as the date on which the appropriate service obligation would be applied.  Additionally, in accordance with DTM 09-003, Attachment 2, 3.i. and AFI 36-2306_AFGM1, 18i, members must apply via the DMDC TEB website.  Lastly, 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.”    

Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice on the part of the Air Force.  DMDC shows no record the member applied for TEB; therefore, eligibility could not be established.

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 8 May 2020 for comment (Exhibit D).  The applicant responded contending the advisory states there is no record in the DMDC to show he applied for TEB and that his eligibility could not be established.  However, DTM 09-003 established his eligibility under attachment 2, 3.a.(3)(b), which states, for those individuals who have an approved retirement date after 1 August 2009 and before 1 July 2010, no additional service is required.  Therefore, he was qualified to transfer his benefits while still active duty.  In May 2018, a Department of Veterans Affairs counselor informed him that he was ineligible to transfer his benefits because the transfer should have taken place before leaving active duty.  On 15 July 2009, during his pre-separation counseling, it was conveyed that the program had not begun - which was true.  Further, he could apply for TEB anytime during retirement or when he was ready to use the program (which was inaccurate).  The Air Force counselor never told him that he had to apply for TEB while still on active duty. This is a grave injustice. 

The applicant’s response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

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 the victim of an error or injustice.  While the Board notes the recommendation of AFPC/DP3SA against correcting the record, the Board finds a preponderance of the evidence substantiates the applicant’s contentions.  In this respect, the Board finds the newness of the program and the limited, and at times incorrect, information available it is more likely than not the applicant was told he could apply for TEB anytime during retirement or when he was ready to use the program.  The Board does not find it reasonable that he would have knowingly elected not to take the necessary action in order to ensure he retained this entitlement for his dependents. Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 1 August 2009, he elected to transfer his Post 9/11 GI Bill Educational Benefits to his dependents.

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-2020-01589 in Executive Session on 12 August 2020 and 27 January 2021:

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

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 14 March 2020.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP3SP, dated 6 May 2020.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 8 May 2020.
Exhibit E:  Applicant’s Response, w/atchs, dated 20 May 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.