RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02686

  						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  He be allowed to transfer his Post-9/11 GI Bill Educational benefits to his dependents.

2.  His Active Duty Service Commitment (ADSC) date be changed to 3 November 2015 rather than 3 November 2016.

APPLICANT CONTENDS THAT:

He agreed to the TEB ADSC at the time of transfer and intended to serve out the entire commitment; however, the Air Force established a mandatory retirement date of 1 December 2015.  His TEB ADSC expires 3 November 2016.  He transferred 9 months of benefits to his two dependents and to further complicate matters - one dependent used a portion of the transferred benefits for her freshman year. Reversing the TEB and/or repayment for the used benefits will create financial hardship.

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

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date is 12 November 1992.

The applicant was approved for TEB effective 4 October 2012 and incurred an ADSC to 3 October 2016 (IAW AFI 36-2306, Attachment 9, A9.18.1.3).

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 he 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) or statute from committing to four additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute.

On 9 June 2015, the applicant was notified by the 37th Force Support Squadron, Military Personnel Section, that due to his second nonselection to the grade of lieutenant colonel, the law requires the applicant be separated no later than 30 November 2015.

The applicant retired effective 1 December 2015, under the provisions of AFI 36-3203, Service Retirements, and was credited with 23 years and 19 days of active service for retirement.  His narrative reason for separation is “Voluntary Retirement:  Maximum Service or Time in Grade.”

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 indicating the applicant did not fulfill a four year service obligation.  Being passed over for promotion is not an acceptable reason to consider an ADSC fulfilled.

The applicant was approved for TEB; however, because he was passed over twice for promotion, he is required to separate and cannot fulfill his TEB obligation.  His TEB application was reviewed and approved resulting in a four year ADSC based on the applicant’s eligibility status on the date of request (4 October 2012).  In order to retain TEB benefits, the applicant has to serve to/through the Obligation End Date of 3 October 2016.  There is no provision in TEB guidance granting fulfillment of obligation in the event a member is passed over twice for promotion and subsequently separated from service.  According to AFI 36-2306, Attachment 9, A9.18.8.5, 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.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 6 November 2015 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

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 separation 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 in a similar case, AFPC/JA recommended 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 are eligible for TEB.  In this case, the applicant separated on his mandatory separation date of 30 November 2015, which was established as a result of his second deferral for promotion to the grade of lieutenant colonel per 10 U.S.C. § 632.  Further, a recent AFPC/JA review states that when a member has the ability to complete the additional four years of service and it 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, precluded the applicant from serving the four years of service required.  Therefore, because he met all other eligibility criteria, the applicant was eligible for TEB.  Therefore, we recommend the applicant’s records be corrected as set forth 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 4 October 2012, he elected to transfer his Post-9/11 GI Bill Educational Benefits to his eligible dependents and on 30 November 2015, 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-2015-02686 in Executive Session on 21 October 2016, under the provisions of AFI 36-2603:

All members voted to correct the record as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02686 was considered:

Exhibit A.  DD Form 149, dated 22 June 2015, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, AFPC/DPSIT, dated 21 July 2015.
Exhibit D.  Letter, AFBCMR, dated 6 November 2015.

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.