RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02809

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His records be corrected to regain the Post 9-11 GI Bill transfer of education benefits (TEB) for his eligible children.  

APPLICANT CONTENDS THAT:

He was granted a waiver for his active duty service commitment (ADSC) by the Secretary of the Air Force (SECAF) and therefore should retain his TEB approval.  After receiving the approval, he had no reason to believe that he was not eligible for TEB.  

He requested a waiver of his ADSC which was approved during his retirement process.  He clearly and accurately stated the reason for his request and also requested the ability to keep his TEB.  Two of his children have been using the education benefits for the last four years.  However, Veteran Affairs has now billed him for the used benefits because he did not fulfill his ADSC.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 5 March 1991.  

On 29 July 2010, the applicant initiated a voluntary application for retirement to be effective 1 July 2011.  

On 5 August 2010, the Air Force Personnel Center (AFPC) Retirement and Separations Branch advised the applicant that he was eligible for retirement, effective 1 July 2011, but required a waiver of a retirement restriction or condition.  Specifically, the applicant had a Tuition Assistance ADSC of 15 May 2011 and he needed to apply under the 3-Day Option Rule as an exception to policy (ETP) in order to retire on 1 July 2011.  He could only request a waiver for “Hardship” or for the “Best Interest of the Air Force.”  

On 13 August 2010, according to the Defense Manpower Data Center, the applicant submitted a TEB application and it was approved on 24 August 2010, causing him to incur a two-year ADSC, until 12 August 2012.

On 18 August 2010, the applicant submitted his ETP request, asking to waive his Tuition Assistance ADSC of 15 May 2011, along with his commander’s endorsement.  

On 2 September 2010, the Air Force Personnel Center (AFPC) Retirement and Separations Branch personnel advised the applicant that due to his ADSC for the Post-9/11 GI Bill, he must submit either a Hardship or Best Interest of the Air Force waiver request to the SECAF for approval, to waive his ADSC.  The applicant indicated he wanted to continue with the waiver request that was currently en-route and did not wish to extend his retirement to 2012.  

On 9 September 2010, the applicant requested his retirement application be processed even though the GI Bill ADSC was still in the system.  However, he was advised the ADSC could not be disregarded and the processing of his application continued without a waiver from the Secretary of the Air Force Personnel Council (SAFPC).  The applicant indicated he did not intend to provide a GI Bill ADSC waiver, but instead work with the Veterans Affairs (VA).  

On 13 September 2010, in a memorandum to AFPC/DPSOR, the applicant requested his ADSC of August 2012 be waived in order to have his retirement application accepted.  He also indicated that he understood that his action could cause him to lose his Post 9/11 GI Bill TEB.  

On 29 September 2010, the Secretary of the Air Force approved the active duty service commitment waiver with a retirement effective date of 1 July 2011.  

On 30 June 2011, the applicant was relieved from active duty and retired, effective 1 July 2011, in the grade of captain (O3) with a narrative reason for separation of “Voluntary Retirement:  Sufficient Service For Retirement.”  He was credited with 20 years, 2 months and 26 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 31 May 2013, it incorporated Decision Type Memorandum (DTM) 09-003, date 22 June 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 member did not submit nor was he approved for a Hardship waiver.  The member retired under the “Best Interest of the Air Force” and is ineligible for TEB in accordance with AFI 36-2306.  

The applicant submitted a voluntary retirement application on 29 July 2010 under the three-day option rule prior to applying for TEB.  He submitted a TEB application on 13 August 2010 and was approved on 24 August 2010.  As such, he incurred a two year active duty service commitment (ADSC) until 12 August 2012.  During his retirement application process, his TEB application was approved by the Total Force Service Center personnel.  On 2 September 2010, the Air Force Personnel Center (AFPC) Retirement and Separations Branch personnel advised the member via e-mail that he had an ADSC for the Post-9/11 GI Bill, and that he must submit either a Hardship or Best Interest of the Air Force waiver request to the Secretary of the Air Force for approval.  

The applicant was advised if approved for a waiver of his ADSC, the Department of Veterans Affairs (VA) may treat any benefits paid to his dependents as an overpayment and may collect the amount of the overpayment from him and that he should contact the VA for more information prior to applying for the waiver.  

Additionally, according to the Right Now Technology, the applicant was advised by AFPC Retirements and Separations Branch personnel that he would lose the benefit if he retired; and the member acknowledged.  His retirement application was approved on 29 September 2010 under the “Best Interest of the Air Force” ADSC waiver.  

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:

A copy of the Air Force evaluation was forwarded to the applicant on 8 December 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.  Insufficient relevant evidence has been presented to demonstrate the existence of an 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 (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

THE BOARD DETERMINES THAT:

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

The following members of the Board considered AFBCMR Docket Number BC-2015-02809 in Executive Session on 29 September 2016 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02809 was considered:

	Exhibit A.  DD Form 149, dated 23 June 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSIT, dated 15 July 2015.
	Exhibit D.  Letter, AFBCMR, dated 8 December 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.