RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03201

XXXXXXXXXXXXXXX	COUNSEL: XXXXXXXXX
	
	HEARING REQUESTED: YES	

APPLICANT’S REQUEST
 
He be allowed to distribute his Post-9/11 GI Benefits Transfer of Education Benefits (TEB) to his eligible dependents.

APPLICANT’S CONTENTIONS

He was notified in the summer of 2014 that he would be retired following three unsuccessful spinal surgeries.  In Mar 2015, he submitted his request to transfer his TEB benefits to his eligible dependents via MilConnect.  He called their help line to make sure that what he entered was correct in the system and prior to hanging up, he asked the representative if there was anything else and was assured that he was good to go.  He took this extra step because he was in a lot of pain, suffering from depression and taking at least 150 mg of morphine, and other nervous system inhibitors, of prescribed medications.  He was sure that he had done everything that he needed to do in order to transfer his benefits over six months prior to his medical retirement.  He was never notified that his 3 March 2015 request did not go through, as he believed all official documents were coming to him via his Physical Evaluation Board Liaison Officer (PEBLO), or his unit, based upon what he was briefed along with the documents he continued to receive.  He also did not have access to government email as he was at home.  He would have done whatever was necessary if he had known his request did not go through.  This benefit is critical to his kids.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force lieutenant colonel (0-5).  His DD Form 214, Certificate of Release or Discharge from Active Duty, effective 27 September 20XX, reflects he was credited with 23 years, 1 month, and 28 days of total active service.  He was issued a narrative reason for separation of “Disability, Permanent (Enhanced).”

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. Based upon the analysis of the facts, and documentation provided by the applicant, there is no evidence of an error or injustice on the part of the Air Force.  The Defense Manpower Data Center (DMDC) records show the applicant applied for TEB on 6 March 2015.  The application was rejected on 8 April 2015 because the applicant failed to complete and submit the required TEB Statement of Understanding (SOU).  The applicant reapplied on 14 August 2015.  The application was rejected on 17 September 2015 because the applicant could not complete the required four year service obligation due to a projected medical retirement, effective 28 September 2015.  In accordance with Air Force Instruction (AFI) 36-2649, Voluntary Education Program, members must agree to serve four additional years from the date of application and complete and submit the TEB SOU within 30 days of the Initial Notification.  The applicant did not complete and submit the required TEB SOU within the required application period and could not agree to the required 4 years retainability.    

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 November 2021 for comment (Exhibit D), and the applicant replied on 15 December 2021.  In his response, the applicant contended he had no idea that his original request was not approved.  He should be afforded the opportunity to have his records adjusted so that he may pass his earned benefits to his family because he was mentally and physically impaired due to major depressive disorder, acute and chronic pain, and high levels of opiates and neural inhibitors.  It is his understanding that personnel with disabilities and affirmed medical retirements due to a disability is an acceptable reason for failure to complete a service agreement.  

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 AFPC/DP3SP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends his service commitment should be negated due to his disability medical retirement.  However, we note the applicant could not agree to a four year service obligation due to his projected medical retirement, making him ineligible to obtain approval for the transfer his education benefits.  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-2021-03201 in Executive Session on 11 January 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 13 August 2021.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP3SA, w/atchs, dated 8 November 2021.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 16 November 2021.
Exhibit E:	Applicant’s Response, dated 15 December 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.