RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02415

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His service obligation for transfer of his Post-9/11 GI Bill benefit to his dependents be adjusted to his date of separation (DOS).
 
APPLICANT’S CONTENTIONS

He transferred his education benefits to his dependents prior to retirement.  He was counseled since he had over 20 years of service he did not need to complete a service obligation.  The Veterans Affairs (VA) denied his son the benefit because he did not meet the service commitment by 85 days.  He would have served an additional three months if he was told it was necessary to retain eligibility for Post-9/11 GI Bill transfer of education benefits (TEB).  He is paying for benefits he earned by serving over 23 years of honorable service.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force master sergeant (E-7).  

DD Form 2648, Pre-Separation Counseling Checklist, dated 22 Aug 11 shows he did not request additional counseling on education and training benefits.  

The applicant’s Post 9/11 GI Bill Transfer of Educational Benefits Statement of Understanding (SOU), dated 26 Jan 12, states for those eligible for retirement after 1 Aug 09 and before 1 Aug 10, one year of additional service was required.  The applicant’s total active federal military service date (TAFMSD is 12 Oct 89).  The SOU shows 25 Jan 13 is annotated on the bottom of the document.    

AF Form 1160, Military Retirement Application, reflects the applicant applied for retirement on 1 Feb 12 with an effective retirement date of 1 Oct 12.  

On 1 Oct 12, he retired in the grade of master sergeant.  He was credited with 22 years, 11 months and 19 days of active duty 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 denial.  The applicant retired effective 1 Oct 12 and failed to complete his TEB service obligation.  In accordance with AFI 36-2306, Voluntary Education Program,  members eligible for retirement on 1 Aug 09 incurred no additional service obligation.  However, members eligible for retirement after 1 Aug 09 and on or before 1 Aug 10 incurred one year of additional service from the date of request.  Based on his TAFMSD (12 Oct 89), he incurred a one year obligation with TEB approval.  The 26 Jan 12 application was approved on 1 Feb 12 with a one-year service obligation to 25 Jan 13.  

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 15 Mar 21 for comment (Exhibit D), and the applicant replied on 30 Mar 21.  In his response, the applicant contended the TEB policy representative explained he requested retirement on 25 Jan 12 and TEB to his dependents on 26 Jan 12.  She stated the systems did not have a window to talk to and therefore his retirement briefing proceeded as if everything was good to go.  Additionally, as stated, he was briefed since he had over 20-years of service he did not have to complete an ADSC, He does not know if the briefer was confused or he was not properly briefed on the rules.  He only missed the ADSC by a couple of months and it was clearly his intent to transfer his benefits.  Had he been briefed correctly, he would have easily completed the ADSC and already completed 23 years of active duty.  He is currently paying out of pocket nearly $15,000.  The applicant’s complete response is at Exhibit E.

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 applicant contends he was miscounseled; however, he has provided no evidence to substantiate this to be the case.  Moreover, the applicant’s SOU clearly states he would incur a one-year service obligation for TEB based on his TAFMSD; however, he did not complete the full ADSC.  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-2020-02415 in Executive Session on 11 May 21:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 26 Aug 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP3SA, dated 9 Mar 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 15 Mar 21.
Exhibit E:	Applicant’s response, dated 30 Mar 21.

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.