RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01089

XXXX X. XXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

He be allowed to Transfer Educational Benefits (TEB) to his dependents.

APPLICANT’S CONTENTIONS

He is entitled to benefits under the Post 9/11 GI Bill as he served in the United States Air Force from 14 Jun 88 to 30 Jun 08.  He is seeking approval to transfer his remaining benefits to his dependent child.  While he was serving on active duty the procedure to transfer benefits was not established or published.  The provision of 38 CRF, Part 21, stating that benefits can only be transferred while the service member is on active duty unfairly penalizes him as the rules were not approved until after his retirement.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force colonel (O-6).

On 1 Jul 08, according to DD Form 214, Certificate of Release or Discharge From Active Duty, the applicant retired with 20 years, 1 month, and 20 days 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.  The applicant served on active duty until 30 Jun 08 and requests approval to transfer benefits to eligible dependents.  In accordance with Directive-Type Memorandum (DTM) 09-003: Post 9/11 GI Bill, Attachment 2 (3.a.), members are eligible to transfer benefits if service to the Armed Forces was on or after 1 Aug 09.  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 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 2 Aug 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 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-2021-01089 in Executive Session on 12 Oct 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, dated 30 Dec 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP3SA, dated 21 Jul 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 2 Aug 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.