RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03711

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES
 
APPLICANT’S REQUEST

He be allowed to transfer his Post-9/11 GI Bill education benefits (TEB) to his eligible dependents.

APPLICANT’S CONTENTIONS

On 19 Aug 14, the applicant reenlisted for six years with the intent to transfer his education benefits to his spouse, and retire at the end of the enlistment.  The applicant applied for TEB and was approved.  However, he did not complete the enlistment due to a medical condition that prevented him from meeting the Air Force physical fitness standards. In late 2016, the applicant was diagnosed with two disintegrated disks in his lower back.  He did not expect to sufficiently recover from back surgery that was scheduled in May 17, so he transitioned out of his Command Chief position and retired after the surgery on 4 Jul 17.  On 4 Aug 21, the applicant was notified by the Department of Veterans Affairs that he had to repay $27,654.54 in education benefits because he failed to complete the required service obligation associated with his TEB approval.  He would have requested to be released from the Selective Reserve for physical conditions that interfere with the performance of duty instead of retiring had he been aware of the requirement to repay the TEB benefits used by his wife.  The applicant is requesting the remaining service commitment be waived to retroactively correct his decision to retire.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force chief master sergeant (E-9).

On 19 Aug 14, according to DD Form 4, Enlistment/Reenlistment Document Armed Forces of the United States, the applicant reenlisted for six years.

On 3 Jul 17, according to NGB Form 22, Report of Separation and Record of Service, the applicant retired with twenty-nine (29) years, three (3) months, and eleven (11) days of active service.  The applicant’s retirement was associated with a Separation Program Designator (SBD) code of RBD, Sufficient Service for Retirement.

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

APPLICABLE AUTHORITY/GUIDANCE

According to the regulation at the time of the applicant’s discharge, Directive-Type Memorandum (DTM) 09-003, dated 22 Jun 09: Any service member on or after 1 Aug 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request to transfer that entitlement under this section, may transfer that entitlement provided he or she has at least 10 years of service in the Military Services (active duty or Selected Reserve) on the date of approval, is precluded by either standard policy (Service or DOD) statute from committing to four additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute.  (Note that this provision uses the same language as AFI 36-2649, Voluntary Education Program, paragraph A13.18.1.1.2 paragraph 3.a.(2)).  The effect of this paragraph is the elimination of the retainability requirement for members who have at least 10 years of service, who are subject to early separation due to policy or statute, and who agree (or would have agreed) to serve the maximum time allowed.  

The most recent version of DoDI 1341.13, Post-9/11 GI Bill, Incorporating Change 1, dated 12 Jul 18, clarifies the reasons that a member may retain their benefits even though they failed to complete their service obligation, provided they had an approved transfer and/or were not precluded from agreeing to a four-year service obligation at the time of their approval.  According to Enclosure 3, Paragraph 3, sub-paragraph 2d one of those reasons includes member who are “discharge[d] or release[d] from active duty or the Selected Reserve, with an honorable discharge, for a physical or mental condition, not a disability that did not result from his or her willful misconduct, but did interfere with the performance of duty.”

AIR FORCE EVALUATION

NGB/A1Y recommends denying the application.  On 25 Mar 15, the applicant applied for TEB and was approved with a service obligation to 24 Mar 19.  On 3 Jul 17, the applicant voluntarily separated with two years, three months, and one week remaining on his TEB service obligation.  In accordance with Title 38 U.S.C., Chapter 33 and AFI 36-2306, a member will incur a four-year service obligation and a Reserve Service Commitment will be updated in their records effective from date of application in the defense MilConnect website. Exception: Members discharged due to disability, the TEB obligation date will be the date of separation. The NGB Form 22, Report of Separation and Record of Service, must reflect the correct Separation Code for a medical disability.  There is no evidence of error or injustice on the part of the Air Force because the applicant’s NGB Form 22 does not reflect a separation code for a medical disability.

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 3 Feb 22 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 NGB/A1Y and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board notes the applicant incurred a service obligation when he transferred education benefits to his dependents.  The applicant voluntarily retired prior to the completion of his service obligation due to a medical condition that prevented him from meeting physical fitness standards.  The applicant would have been eligible to retain education benefits for his dependents if he separated with a separation code that shows a medical disability.  As a result of his voluntary retirement, the applicant incurred a debt and his benefits were terminated.  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.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.  

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-2021-03711 in Executive Session on 19 Apr 22:

, 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 19 Oct 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, NGB/A1Y, w/atch, dated 20 Jan 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 3 Feb 22.

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.