RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00215

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES
 
APPLICANT’S REQUEST

An exception to policy be approved so she can be eligible for Post-9/11 GI Bill education benefits (TEB).  

APPLICANT’S CONTENTIONS

In 2007, the applicant’s son was killed in Iraq while she was serving on active duty.  In 2008, the applicant was tasked for a 365-day deployment to Afghanistan.  She declined the deployment and retired from active service because she was suffering from Post-traumatic Stress Disorder (PTSD), anxiety, panic attacks, and depression after her son’s death.  The applicant retired one year prior to the start of the TEB program, and has a PhD.  However, she has two living sons, and is requesting an exception to policy to transfer education benefits to her dependents despite retiring prior to the enactment of the program. She requests this exception to policy because if it were not for the death of her son, she would have continued serving and would have otherwise been eligible for the transfer.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 31 Aug 08, according to the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, she was relieved from active duty and retired effective 1 Sep 08.  She was credited with 21 years, 5 months, and 8 days of active service for retirement.

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 is ineligible to transfer education benefits to her dependents due to the effective date of her retirement.  By law and Department of Defense (DoD) guidance, the program for the transfer of benefits was enacted on 1 Aug 09.  Specifically, in accordance with DoD Instruction 1341.13, Post-9/11 GI Bill, and Air Force Instruction 36-2670, Total Force Development, members are eligible to transfer benefits if service to the Armed Forces was on or after 1 Aug 09.  Additionally, Title 38 United States Code, 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 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 15 Mar 22 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. While the Board sympathizes with the applicant’s situation, by law and DoD guidance she is ineligible for the Post-9/11 GI bill transfer of 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-2022-00215 in Executive Session on 14 Jun 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 1 Dec 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP3SA, w/atchs, dated 4 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 15 Mar 22.

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.