RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02865

 						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 meets the Transfer of Education Benefits (TEB) eligibility requirements as stated in AFI 36-2649, Voluntary Education Program, and DODI 1341.13, Post-9/11 GI Bill.  He reached 18 years of active duty service on 26 February 2015.  He is precluded by statute, DOD and Air Force policy from committing to an additional four years of service as he is an officer twice deferred for promotion to the grade of lieutenant colonel (O-5).  He is in a retirement sanctuary status with a Mandatory Separation Date (MSD) of 28 February 2017 to qualify for retirement as an officer per 10 U.S.C. § 632(a)(3) and AFI 36-2501, Officer Promotions and Selective Continuation.  He agrees to serve the maximum amount of time allowed by 10 U.S.C. 632(a)(3). AFPC unjustly states that he does not have retainability as he requires a four year Active Duty Service Commitment (ADSC) and that paragraph A.13.18.1.1.2 does not apply to him.

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 26 February 1997 and was commissioned on 17 November 2000.  He is currently serving in the grade of major (O-4) with a MSD of 28 February 2017.  

In a letter dated 9 June 2015, the applicant was informed by the Chief, Joint Force Development Division, United States Strategic Command, he would be retained until 28 February 2017 to qualify for retirement as an officer (20 years total active and 10 years commissioned service) as a result of his twice deferral for promotion to the grade of lieutenant colonel.  

According to the Defense Management Data Center (DMDC) printout dated 24 June 2015, the applicant submitted his TEB application in MilConnect on 23 June 2015.  The applicant was notified he was not eligible for TEB based on his established Date of Separation (DOS) of 28 February 2017 which precludes him from serving the required ADSC.  

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) 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 C.    

AIR FORCE EVALUATION:

AFPC/DPSIT recommends denial.  There is no provision in TEB guidance granting members passed over twice for promotion eligibility for TEB.  The applicant cannot secure the required four years of retainability and is ineligible for TEB.

The applicant believes he is eligible for TEB because he was twice passed over for promotion to the grade of lieutenant colonel and has a MSD of 28 February 2017.  In accordance with AFI 36-2649, Attachment 13, A13.18.1.1.2, an additional four years of service is required for approval.  The applicant is ineligible for TEB because he cannot secure the four year ADSC.    

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

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 is eligible for TEB.

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 as an Air Force, 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 C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 9 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.  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 is unable to complete the required four year ADSC based 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 states that members who have at least 10 years of service on the date of application, is precluded by either policy or statute from committing to four additional years of service and agrees to serve the maximum amount of time allowed by such policy or statute is eligible for TEB.  In this case, the applicant’s MSD of 28 February 2017 was established as a result of his twice deferral for promotion to the grade of lieutenant colonel per 10 U.S.C. § 632 and he has agreed to serve through his MSD.  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 23 June 2015, he elected to transfer his Post-9/11 GI Bill Educational Benefits to his eligible dependents with an Active Duty Service Commitment (ADSC) for TEB of 28 February 2017 as required by DODI 1341.13, Post-9/11 GI Bill.   

The following members of the Board considered AFBCMR Docket Number BC-2015-02865 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 indicated.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02865 was considered:

	Exhibit A.  DD Form 149, dated 5 July 2015, w/atchs.
	Exhibit B.  Memorandum, AFPC/DPSIT, dated 24 August 2015.
	Exhibit C.  Memorandum, AFPC/JA, dated 30 November 2015
	Exhibit D.  Letter, AFBCMR, dated 9 December 2015.