RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02140

		COUNSEL:  NONE

						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

His active duty service commitment (ADSC) date for the transfer of education benefits (TEB) be changed to reflect 30 September 2011 to regain his TEB eligibility.  

APPLICANT CONTENDS THAT:

He was on a path to a promising career to be a colonel; however, the Air Force was in dire need of military cuts.  As a result, he was willing to sacrifice his career for his country as long as he was able to retire while still retaining his Post-9/11 GI Bill benefits for his daughter and the active duty service commitment (ADSC) being waived.  This would have been the only reason why he would have retired.  If he could not have provided his children with the Post-9/11 GI Bill benefits, he would have stayed in the military to meet his ADSC, become a colonel and retire at 26 years of service.  

His ADSC was not supposed to just be waived; it was to be changed to the date of his retirement so that his children could use the Post-9/11 GI Bill benefits.  Instead, his records were incorrectly marked and now his oldest child is suffering the consequences.  Nevertheless, he has an endorsed and approved letter by the AF/CC specifically requesting that his ADSC to be waived and his Post-9/11 GI Bill benefits be retained.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 20 May 1991.  

On 26 December 2010, the applicant was approved for TEB and incurred a two year ADSC, until 25 December 2012.  

On 18 March 2011, the applicant and was approved for retirement, effective 1 October 2011.  

On 4 April 2011, a memorandum provided by the applicant, indicated he requested the Air Force Personnel Center to waive his ADSC associated with his TEB, and requested he be able to retain his transferred benefits, with an approved endorsement by the SAF/A60, also requesting he retain the transferred benefits.  

On 9 June 2011, the Secretary of the Air Force approved the active duty service commitment waiver and application submitted by the applicant on 17 May 2011, for retirement effective 1 October 2011.  

On 30 September 2011, the applicant was relieved from active duty and retired, effective 1 October 2011, in the grade of lieutenant colonel (O5) with a narrative reason for separation of “Voluntary Retirement:  Sufficient Service For Retirement.”  He was credited with 20 years, 4 months and 11 days of total active service.  

Under Department of Defense Instruction (DODI)1341.13, Enclosure 3, paragraph 3(g), if an individual transferring entitlement under this section fails to complete the service agreed to, the amount of any transferred entitlement that is used as of the date of such failure shall be treated as an overpayment of educational assistance and shall be subject to collection by VA.  The transferor is considered to have completed his service agreement under certain circumstances, such as death and discharge for hardship.  Although the DODI is dated May 31, 2013, it incorporated Decision Type Memorandum (DTM) 09-003, date June 22, 2009, which included the same provision.  

Additionally, DODI 1341.13, Enclosure 3, paragraph 3(g)(4), permits the Secretary to promulgate guidance regarding waiver of the military service obligation agreed if the individual revokes all transfers and no benefits have been used.  DTM 09-003 did not discuss waiver of the agreed military service obligation.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.  

AIR FORCE EVALUATION:

AFPC/DPSIT recommends denial.  The applicant applied and was approved for TEB effective 26 December 2010.  With approval, the member incurred an ADSC until 25 December 2012.  However, the applicant applied for retirement on 18 March 2011 and was approved for retirement, effective 1 October 2011.  The Secretary of the Air Force (SecAF) approved the applicant’s “Best Interest of the Air Force” waiver and he retired.  He elected to retire prior to fulfilling his TEB ADSC.  Therefore, he became ineligible for the benefit since he did not fulfill his obligation.  

In accordance with Air Force Instruction (AFI) 36-2306, Voluntary Education Program, the following are acceptable reasons an ADSC/Obligation End Date can be considered fulfilled: (a) death of the member, (b) disability, in conjunction with retirement/separation from the Air Force, and (c) hardship, in conjunction with retirement/separation, approved by SecAF.  Although the applicant may have asked to retain his TEB on his ADSC waiver request, he was only approved to retire effective 1 October 2011 with a “Best Interest of the Air Force”, not a “Hardship” waiver approved by the SecAF.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant stated the evidence plainly shows his family was provided the GI Bill benefits and his ADSC was waived.  In support of his response, the applicant resubmitted the letter he initially provided approved by the SecAF which he indicates explicitly requests that his GI Bill benefits for his family be maintained.  This is the only reason why he retired early.  He would not have retired if his family’s GI Bill benefits were not maintained.  In addition, his supervisor at the time has provided a letter indicating that he remembered that his Post-9/11 GI Bill benefits were approved and his ADSC was waived by the SecAF.  One of his children is currently in college and she is not able to benefit from the Post-9/11 GI bill which they were counting on.  

He does not see why it is so difficult for the Air Force to fix this issue for something that they do not even pay for, the Post-9/11 GI Bill is a benefit that the Veterans Administration (VA) provides all veterans as long as the service that the member served approves it.  The Air Force is the only service that requires a 2-year ADSC to obtain this benefit from the VA.  The other services automatically provide approval when the VA calls the service for verification.  

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 injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, we believe that corrective action is warranted.  We note the comments of AFPC/DPSIT indicating that relief should be denied because the applicant elected to retire prior to fulfilling his TEB ADSC.  However, after weighing the complete evidence of record and the applicant’s submission, the Board is persuaded denial of benefits under the facts of this case constitutes an injustice.  The board believes the applicant reasonably believed the waiver of his ADSC included retention of his TEB because he specifically requested TEB retention in his ADSC waiver and retirement request.  When the applicant’s retirement was approved under “best interest of the Air Force,” he did not meet the criteria under DTM 09-003 to be considered to have fulfilled his agreed service obligation and retain transferred benefits.  Nevertheless, it does not appear that this was ever clearly communicated to the applicant.  The preponderance of the evidence establishes the applicant and the SAF/A6O endorsing his request believed the approved retirement meant his agreed service obligation had been fulfilled.  Additionally, the applicant has provided a letter from his then-supervisor stating the same.  As such, the Board believes the loss of his TEB under these circumstances constitutes an injustice.  While the Secretary is not able to waive this service obligation under DTM 09-003 or DoDI 1341.13, the Secretary is able to correct this applicant’s Air Force record in a way to reflect he fulfilled his agreed service obligation.  In the interest of justice, we recommend the applicant’s record be corrected as set forth below. 

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.  

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 1 October 2009, he elected to transfer his Post-9/11 GI Bill Educational Benefits to his dependents.  

The following members of the Board considered AFBCMR Docket Number BC-2015-02140 in Executive Session on 5 April 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 for AFBCMR Docket Number BC-2015-02140:

	Exhibit A.  DD Form 149, dated 18 May 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSIT, dated 25 August 2015, 
                 w/atch.  
	Exhibit D.  Letter, AFBCMR, dated 13 November 2015.
	Exhibit E.  Letter, Applicant, dated 24 November 2015,   
                 w/atchs.  

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.