RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00148

XXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Her service commitment be changed to 12 Sep 12 and she be allowed to transfer educational benefits (TEB) to her dependents.

APPLICANT’S CONTENTIONS

Her records were updated with the incorrect service obligation.  Her TEB records reflect she incurred a 4-year commitment based on her election to transfer benefits, with a commitment of 24 Aug 13.  However, when she signed the transfer document she was advised she would receive a 1-year commitment because she was retirement eligible during the time frame.  She served the 1-year commitment she was advised she needed, and should be allowed the benefit.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force captain (O-3).

The applicant’s Total Active Federal Military Service Date (TAFMSD) is 27 Nov 90, establishing a retirement eligibility date of 26 Nov 10.

On 7 Sep 11, the applicant signed Post-9/11 GI Bill Transfer of Educational Benefits Statement of Understanding, indicating her acknowledgement and agreement of Item I(d) Service Obligation: For those individuals eligible for retirement on or after 1 Aug 10 and before 1 Aug 11, 2 years of additional service is required. 

On 1 Oct 12, the applicant retired with 21 years, 10 months and 13 days of active service.

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

APPLICABLE AUTHORITY

AFI 36-2306, Voluntary Education Program, 13 Aug 10, Attachment 9.

A9.18. Transferability of unused benefits to dependents. 
A9.18.1. Eligibility.
A9.18.1.4. Is or becomes retirement eligible during the period from 1 Aug 09 through 1 Aug 12 and agrees to serve the additional period, if any, specified below. For the purposes of this paragraph, a member is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed under title 10 U.S.C § 12732. Use whichever computation establishes 20 years, regardless of which component the member is assigned to at the time of electing to transfer benefits.
A9.18.1.4.4. For those members eligible for retirement after 1 Aug 10 and on or before 1 Aug 11, two years of additional service from the date of request is required.

AIR FORCE EVALUATION

AFPC/DP3SA recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  The Defense Manpower Data Center (DMDC) records reflect the applicant applied for TEB on 25 Aug 11.  Based on her TAFMSD she incurred a 2-year commitment with TEB approval.  In accordance with AFI 36-2306, 2 years of additional service from the date of request is required.  The application was approved on 9 Sep 11, with a 2 year service commitment of 24 Aug 13.

Additionally, the applicant applied and was approved for TEB after notification of non-selection for promotion and was required to separate prior to meeting the service obligation.  At the time of application, there was no provision in TEB guidance granting fulfillment of obligation in the event a member is passed over twice for promotion and subsequently separated from service.  Effective 12 Jul 18, Department of Defense Instruction (DoDI) 1341.13, Post-9/11 GI Bill, Change 1, 3.g.(2)(g), expanded the scope of Force Shaping to include members twice passed over for promotion allowing retention of transferred benefits.  However, the policy only applies to members with an approved transfer prior to notification of non-selection for promotion.  The applicant was notified of her non-selection for promotion to major on 21 Apr 11, 4 months prior to the TEB application.  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 16 Mar 21 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 applicant applied for TEB on 25 Aug 11, and was approved on 9 Sep 11 with a 2 year service commitment of 24 Aug 13.  Furthermore, she was notified of her non-selection for promotion to major 4 months prior to the TEB application.  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-2021-00148 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 29 Oct 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP3SA, w/atchs, dated 18 Feb 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 16 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.