RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-01699

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

He be approved for transfer of his Post-9/11 GI Bill benefits.  

APPLICANT CONTENDS THAT:

He had an Active Duty Service Commitment (ADSC) until September 2015 for Transfer of Education Benefit (TEB).  However, his Mandatory Separation Date (MSD) due to his non-selection for promotion to the grade of lieutenant colonel (O-5) was 31 October 2014.  Because of his three time non-selection for promotion to the grade of lieutenant colonel, he was required to retire at his 20 year mark.  He requests his records be corrected to reflect he fulfilled the ADSC due to his mandatory retirement. 

The applicant’s complete submission, with attachments, is at Exhibit A.  

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 31 October 1994 and retired on 1 November 2014 in the grade of major (O-4).  His DD Form 214, Certificate of Release or Discharge from Active Duty, reflects his narrative reason for separation as “Vol Retirement: Maximum Service or Time in Grade.”  He was credited with 20 years of active duty service.  

The applicant requested TEB on 16 September 2011 as reflected on the digitally signed Post9/11 GI Bill Transfer of Educational Benefits Statement of Understanding (SOU).  Item 1, Service obligation, states “In accordance with Title 38 U.S.C., Chapter 33 and AFI 36-2107, I will incur a service obligation of 4 years and an Active Duty Service Commitment (ADSC) will be updated in my records effective from date of application in the Defense Manpower Data Center (DMDC) Transfer of Education Benefits (TEB) website.  As a result, the applicant incurred an ADSC for TEB thru 15 September 2015.  

In an undated later, the 99th Air Base Wing Commander (99 ABW/CC) informed the applicant he was not selected for promotion to the grade of lieutenant colonel by the CY13D Lieutenant Colonel Central Selection Board.  The applicant was further informed that since he was within two years of qualifying for retirement (20 years total active service and 10 years total active commissioned service) as of 31 August 2014, he would be retained on active duty until he was eligible to retire as an officer.  As a result, the applicant’s MSD was established as 31 October 2014 (20 years of active duty service).  

DODI 1341.13, Post-9/11 GI Bill, Enclosure 3, Paragraph 3, states: Any service member on or after 1 August 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request to transfer that entitlement under this section, may transfer that entitlement provided her or she has at least 10 years of service in the Military Services (active duty or Selected Reserve) on the date of approval, is precluded by either standard policy (Service or DOD) statute from committing to four additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute.  

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits B and D.    

AIR FORCE EVALUATION:

AFPC/DPSIT recommends denial.  The applicant did not fulfill his four year service obligation.  Being passed over for promotion is not an acceptable reason to consider an ADSC fulfilled.  The applicant’s TEB application was reviewed and approved properly resulting in a four year ADSC based on his eligibility status on the date of request, 12 September 2011 [sic].  To retain TEB benefits, the applicant must have served through the obligation end date of 11 September 2015 [sic].  There is no provision in TEB guidance granting fulfillment of the obligation in the event a person is passed over twice for promotion and subsequently separated.  According to AFI 36-2306, Education Services Program, the following are acceptable reasons an ADSC/Obligation End Date can be considered fulfilled: death of the member, disability, in conjunction with retirement/separation from the Air Force or hardship, in conjunction with retirement/separation approved by the SECAF.

Should the Board grant the applicant’s request, DPSIT will adjust the applicant’s obligation end date to 31 October 2014.  

A complete copy of the AFPC/DPSIT is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 3 November 2015 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA agrees with the applicant he is eligible for TEB and recommends the application be granted.  For the reasons to follow, AFPC/JA believes the DPSIT advisory is wrong and the applicant’s ADSC should be adjusted accordingly.  

Transfer to an eligible family member of a military member’s educational benefits under the GI Bill was provided for by Congress in 38 U.S.C. § 3319, Authority to Transfer Unused Education Benefits to Family Members.  That section of law sets out the basic eligibility criteria for such transfer and includes as eligible a member of uniformed service who has served six years of service and enters into an agreement to serve at least four more years per 38 U.S.C. § 3319(b)(1). Section 3319(j)(2) of the law provides that the Secretary of Defense, in coordination with the Secretary of Veteran Affairs, shall prescribe regulations to further specify the eligibility criteria in accordance with Subsection (b).  That was done with the publication of DODI 1341.13.  Paragraph 3, of Enclosure 3 of the DODI contains the provisions on the transferability of unused educational benefits to family members.  Subparagraph 3a defines eligible members.  One of the categories include members who have at least 10 years of service in the Military Services (active duty or Selected Reserve), NOAA Corps, or PHS on the date of approval, is precluded by either standard policy (Service or DOD) or statute from committing to four additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute.  The corresponding AFI provision, AFI 36-2649, paragraph A13.18.1.1.2 mimics that language.

The plain language of these provisions states that where the ability to complete the additional four years of service is precluded either by Air Force policy, DOD policy or statute, the member is eligible if he/she agrees to serve the maximum time allowed by the policy or statute.  These governing regulatory provisions are unambiguous.  In this case, a statute, 10 U.S.C. § 632, precludes the applicant from serving the four years of service required.  Therefore, because he meets all other eligibility criteria, the applicant is eligible for TEB.  

A government agency must abide by its own rules and regulations where the underlying purpose of such regulations is the protection of personal liberties or interests.  United States v. Russo, 1M.J. 134, 135 (C.M.A. 1975) (citing Am Farm Lines v. Black Ball Freight Serv., 397 U.S. 532(1070); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).  The Accardi doctrine is that an agency must abide by its own regulations, and when that agency fails to follow its own procedures or regulations, the agency’s actions are generally invalid.  Therefore, an agency’s failure to afford an individual procedural safeguards required under its own regulations may result in the invalidation of the ultimate administrative determination.  The bottom line is that so long as neither statute nor DOD policy prohibits or overrules, the Air Force is bound to follow what it has published until such time as it is properly changed.  In this case, the DODI and AFI are in accord.   

A complete copy of the AFPC/JA evaluation is at Exhibit D.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In an e-mail dated 13 May 2016, the applicant acknowledged receipt of the additional Air Force evaluation.

A complete copy of the applicant’s response is at Exhibit G.  

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice.  We note AFPC/DPSIT recommends denial stating the applicant did not complete the required four year ADSC prior to his retirement on his MSD and there is no provision in TEB guidance to grant members passed over twice for promotion eligibility for TEB.  However, we are persuaded corrective action is warranted.  In this respect, we note AFPC/JA recommends approval stating both DODI 1341.13 and AFI 36-2649 state that members who have at least 10 years of service on the date of application, are precluded by either policy or statute from committing to four additional years of service and agree to serve the maximum amount of time allowed by such policy or statute is eligible for TEB.  In this case, the applicant retired on his MSD of 31 October 2014 which was established as a result of his third deferral for promotion to the grade of lieutenant colonel per 10 U.S.C. § 632.  Accordingly, we agree with the opinion and recommendation of AFPC/JA and adopt the rationale expressed as the basis for our conclusion the applicant has been the victim of an error or injustice.  Therefore, we recommend the applicant’s records be corrected as indicated below.  

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 16 September 2011, he elected to transfer his Post-9/11 GI Bill Educational Benefits to his eligible dependents and on 31 October 2014, he completed the required Active Duty Service Commitment (ADSC) for TEB as required by DODI 1341.13, Post-9/11 GI Bill.     

The following members of the Board considered AFBCMR Docket Number BC-2015-01699 in Executive Session on 26 May 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
      , Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 20 April 2015, w/atchs.
	Exhibit B.  Applicant’s Records
	Exhibit C.  Memorandum, AFPC/DPSIT, dated 7 May 2015.
	Exhibit D.  Letter, AFBCMR, dated 3 November 2015.
	Exhibit E.  Memorandum, AFPC/JA, dated 6 May 2015.
	Exhibit F.  Letter, AFBCMR, dated 13 May 2016.  
	Exhibit G.  E-mail, AFBCMR, dated 13 May 2016.
	Exhibit H.  E-mail, Applicant, dated 13 May 2016.