RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01891
		INDEX CODE:  100.00
		
		COUNSEL:  NONE
		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  14 DECEMBER 2008

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APPLICANT REQUESTS THAT:

He be given an opportunity to now sign up for the Veterans’ Education Assistance Program (VEAP) and subsequent Montgomery GI Bill Act of 1984 (MGIB).

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APPLICANT CONTENDS THAT:

He entered the Air Force on 9 Oct 83 as a Judge Advocate.  Judge Advocates attend The Judge Advocate General’s School (TJAGS) and do not go to Officer Training School (OTS).  TJAGS involved no formal AF in-processing, but rather was a career field orientation and preparatory program.  He was not properly counseled on the benefits and ramifications of accepting or declining the MGIB. 

His in-processing was “haphazard at best” and he was never informed or offered the opportunity to exercise his Veterans’ Education Assistance Program (VEAP) rights.  

He is willing to contribute the maximum funds to catch-up for the lost years to fully participate in the program.

In support of his request, applicant provided a counseling memo from his base education office.

The applicant's complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of Colonel.  His Total Active Federal Military Service Date (TAFMSD) is 9 Oct 83.  He has a voluntary retirement date of 30 Sep 07.

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AIR FORCE EVALUATION:

AFPC/DPPAT recommends denial.  Approval of this request will violate the law.  The Department of Veterans Affairs and Defense Finance and Accounting Service records show the applicant never initiated a VEAP account by making an initial deposit and was, therefore, ineligible to participate in VEAP or either conversion window.  The government utilized all available methods to ensure applicant was offered the opportunity to participate by opening a VEAP account.

VEAP was enacted by Congress to provide a voluntary education benefit for Armed Services personnel entering active duty between 1 Jan 77 and 30 Jun 85.  The applicant entered on 1 Oct 83.

Air Force guidance required all eligible personnel to hear a VEAP briefing at accession training, upon entry to active duty, one year thereafter, and at newcomer’s briefings subsequent to each PCS move.  Information was also provided on leave and earning statements (LES), at commander’s calls, in daily bulletins, base newspapers, personal letters, and on demand at base education offices.  The Air Force conducted an aggressive publicity campaign and held mass briefings during 1985-87 to inform nonparticipants of VEAP’s termination, and that the last date to enroll was 31 Mar 87.  The above listed methods were used to contact individuals of the enrollment deadline.  Individuals desiring to take advantage of the program were told to start an allotment--or make an initial deposit–-at the local accounting and finance office.

Congress later opened two windows of opportunity for VEAP participants to convert their benefits to the more lucrative MGIB.  The first, in 1996-97, included VEAP participants with money in a VEAP account while the second, in 2001, allowed those having money or, at one time, had money in a VEAP account to convert.

DPPAT found no evidence that the applicant was unaware of the program.  The Air Force policy and procedures relative to VEAP were more than adequate and provided equal opportunity for all VEAP-era individuals to make an informed enrollment decision.  The Air Force is not responsible for a personal decision made relative to a voluntary program, especially when that program was well known and regularly briefed to all eligible personnel.

The complete evaluation, with attachments is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He was commissioned a first lieutenant through the Direct Appointment Program (DAP).  As a DAP officer he did not go through Officer Training School (OTS).  At his first assignment he did not receive the initial indoctrination or formal Air Force in-processing.  He was never informed of his educational benefits.

The Air Force opinion neither included nor referenced any specific record or records to show that he, in fact, received notice of his VEAP rights.  Instead, the OPR’s argument amounts to nothing more than the thin presumption that he must have been made aware of his VEAP rights.  This argument not only rings hollow, but is contrary to the way the Air Force regularly administers its various benefits.

Clearly, the Government’s argument is contrary to the manner in which other military benefits are administered.  SGLI, TRICARE, SBP, and many other benefits are too important to deny based on the equivocal nature of nonparticipation.  The OPR correctly points out that he failed to avail himself of the windows of opportunity that existed in 1996-1997 and 2001, however, those opportunities required past VEAP participation.  The OPR clouds the fact that he was never informed of his initial VEAP eligibility during the period 9 Oct 83 until 30 Jun 85 or in the subsequent phase that ended on 31 Mar 87.

Where is the evidence to show that he knowingly and voluntarily waived this important benefit?  Surely a system of records was created to archive these many and varied forms of notification?  In the absence of unequivocal evidence, equity favors granting him the benefit of the doubt given his nontraditional path of officer accession.

The one defining place where this information should have been systemically been imparted – accession training – did not occur in his case.  The current OTS website specifically alerts inbound students of the “Important Decisions You Will Have To Make” and the very first listed benefit is the Montgomery GI Bill.

Applicant’s complete response is at Exhibit D.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  We do not find the evidence submitted by the applicant sufficient to determine that he was treated differently than other similarly situated service members.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number    BC-2007-01891 in Executive Session on 4 October 2007, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to Docket Number BC-2007-01891 was considered:

    Exhibit A.  DD Form 149, dated 11 Jun 07, w/atchs.
    Exhibit B.  Letter, AFPC/DPPAT, dated 1 Aug 07.
    Exhibit C.  Letter, SAF/MRBR, dated 31 Aug 07.
    Exhibit D.  Letter, Applicant, dated 10 Sep 07, w/atch.