RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03094

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.  

APPLICANT’S CONTENTIONS

He did not voluntarily request to be released from the Select Reserves and assigned to the Inactive Ready Reserve (IRR).  His Individual Mobilization Augmentee (IMA) position was deleted/realigned, which placed him involuntarily into a By-Pass position from 28 April 2016 until 27 April 2017.  There were no available positions after 27 April 2017; therefore, he had to either retire or involuntarily transfer to the IRR.  He chose the latter to continue serving in a limited capacity in hopes of securing a full-time position.  His service commitment was cut short due to his transfer to the IRR by three months and eight days.  On 12 May 2017, he had no other choice but to sign an AF Form 1288, Application for Ready Reserve Assignment, because there were no available billets and his command was unable to provide a By-Pass position for another year.

In accordance with Department of Defense Instruction (DoDI) 1341.13 change 1, although not in effect until 12 July 2018, should be considered and applied for the coverage of his daughter’s last year of college since it shows the Air Force’s intent to adjust/correct TEB decisions for those members involuntarily impacted by position eliminations or realignments.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force Reserve senior master sergeant (E-8).

On 21 August 2014, according to the Defense Manpower Data Center, the applicant’s TEB was approved and he incurred a four-year active duty service commitment (ADSC) to 20 August 2018.   

On 10 June 2016, according to the Statement of Understanding (Overage Status) provided by the applicant, he acknowledged being assigned in an overage status to position number 8888888, with an expiration date of 27 April 2017.  One specific condition that applied during this period was for him to make every effort to locate himself a vacant qualifying position.    

On 12 May 2017, according to Reserve Order XX-XXXXX, dated 4 May 2017, the applicant voluntarily requested transfer to the Standby Reserves.  

On 27 November 2018, the applicant was informed that he was reaching his expiration term of service (ETS), effective 10 July 2019 and would be automatically discharged.  Once discharged he would be classified as a former member and not allowed to return to military service.  The applicant had until 10 May 2019 to apply for transfer to the Retired Reserve and maintain his military status.  

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

APPLICABLE AUTHORITY/GUIDANCE

The most recent version of DoDI 1341.13, Post-9/11 GI Bill, Incorporating Change 1, dated 12 July 2018, 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 2g those reasons included:

(a) His or her death.
(b) Discharge or release from active duty or the Selected Reserve, for a medical condition that pre-existed his or her service and was not service-connected.
(c) Discharge or release from active duty or the Selected Reserve for hardship, as determined by the Secretary concerned.
(d) Discharge or release from active duty or the Selected Reserve, 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.
(e) Discharge or release from active duty or the Selected Reserve, with an honorable discharge, for an injury or disability found to be in the line of duty based on the results of Medical Evaluation Board and Disability Evaluation System processing where a member was found unfit for duty (with a medical separation or retirement order); 
(f) Discharge or release from active duty or the Selected Reserve, with an honorable discharge, due to reduction in force or force shaping initiative resulting from a decision by the Secretary of a Military Department.

AIR FORCE EVALUATION

ARPC/DPAT 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 applicant successfully transferred education benefits to his dependents on 21 August 2014 and incurred a service commitment that expired on 20 August 2017 [sic].  On 12 May 2017, the applicant transferred to the IRR before completing his service obligation, nullifying his TEB.  The service commitment waiver for force-shaping was added to DoDI 1341.1 on 12 July 2018 and not written in as retroactive.  Therefore, the change does not apply to the applicant.    

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 October 2021 for comment (Exhibit D), and the applicant replied on 1 November 2021.  In his response, the applicant reiterated that he should be eligible to TEB to his dependents because he did not voluntarily request to be released from the Selected Reserve and assigned to the IRR.  He insists his transfer to the IRR was not by choice but the only option he had because there were no valid positions available.

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 ARPC/DPAT and finds a preponderance of the evidence does not substantiate the applicant’s contentions. The Board notes the applicant contends his service commitment was cut short due to his transfer to the IRR by three months and eight days; however, the evidence of record shows the applicant’s active duty service commitment expired on 20 August 2018 instead of 20 August 2017.  In addition, while the applicant stated he did not voluntarily request to be assigned to the IRR, there is opposing documentation showing he voluntarily requested the transfer.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought.  Moreover, DoDI 1341.13, Post-9/11 GI Bill, Change 1, contains no retroactive language allowing the applicant to retain his benefits.  The Board further 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-2021-03094 in Executive Session on 8 February 2022:

, 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 20 September 2021.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, ARPC/DPAT, w/atchs, dated 22 October 2021.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 29 October 2021.
Exhibit E:	Applicant’s Response, w/atchs, dated 1 November 2021.

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.