RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01813

XXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO
 
APPLICANT’S REQUEST

He be allowed to transfer his Post-9/11 GI Bill education benefits (TEB) to his eligible dependents by changing his service Obligation End Date (OED) from 19 Sep 13 to reflect 31 Aug 11 or earlier.

APPLICANT’S CONTENTIONS

His TEB OED should be in alignment with the current policy for officer’s twice passed over for promotion.  Based on the instructions he received during a Transition Assistance Program (TAP) briefing it is his belief that he followed the guidance provided at the time of his retirement to transfer education benefits to his dependents.  He was twice passed over for promotion to major which resulted in retirement.  He did not have the opportunity to complete the one year service obligation for TEB due to his mandatory retirement.  He discovered there was an error when attempting to transfer additional benefits to his daughter.  He was informed through the Air Force Personnel Center (AFPC) that his service commitment was originally inputted incorrectly; however, it was administratively corrected.  Nevertheless, the correction with the new OED still exceeded his mandatory retirement date.
 
The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force major (O-4).

On 14 Mar 07, according to AFPC/DP3SA, the applicant acknowledged receipt of his second non-selection for promotion to lieutenant colonel.  He signed a Statement of Acceptance/Declination for Initial Selective Continuation of Majors with Less than 18 Years of Active Federal Military Service and accepted continuation on active duty until qualifying for retirement as an officer.

On 21 Sep 10, the applicant signed a Post 9/11 G.I. Bill Transfer of Educational Benefits Statement of Understanding, acknowledging a three year service commitment with TEB approval.

On 5 Nov 10, according to the applicant’s record in the Defense Manpower Data Center (DMDC) system, he was approved for the Post 9/11 G.I. Bill education benefit with an OED of 19 Sep 13.  

On 31 Aug 11, according to DD Form 214, Certificate of Release or Discharge from Active Duty, the applicant separated from active duty and retired effective 1 Sep 11.  He was credited with 20 years 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.  At the time of the applicant’s application for TEB 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.  On 12 Jul 18, DoDI 1341.13, Change 1, 3.g.(2)(g), Post-9/11 GI Bill, expanded the scope of eligibility for TEB to include members twice passed over for promotion.  There is no error or injustice because the applicant applied and was approved for TEB on 5 Nov 10, after notification of non-selection for promotion on 14 Mar 07.  Retention of the transfer is only allowed if the transfer was approved prior to notification of promotion non-selection IAW DoDI 1341.13, Change 1, 3.g.(2) and 3.g.(2)(g), which states: “The Service member will be considered to have completed his or her previously approved TEB-related service agreement upon:”…“Discharge or release from active duty… with an honorable discharge, due to twice failing to be selected for promotion as a commissioned officer on active duty or Selected Reserve.”

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 29 Sep 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.

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-2021-01813 in Executive Session on 11 Jan 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 18 Apr 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP3SA, w/atchs, dated 28 Sep 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 29 Sep 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.