RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03171

  						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His Active Duty Service Commitment (ADSC) be waived so that his Transfer of Eligibility Benefit (TEB) can be reinstated.

APPLICANT CONTENDS THAT:

On 4 Aug 09, he transferred his Post 9/11 GI Bill benefits to his son and applied in Mar 15 to activate it.  However, on 6 Apr 16, the Air Force denied him using an unfair, arbitrary, and mismanaged policy requiring him to fulfill a 2-year ADSC.  

He was 35 days short due to his Mandatory Separation Date (MSD) of 30 Jun 11.  DoDI 1341.13, Post 9/11 GI Bill, states a member precluded by statute from serving ADSC (but serves maximum time allowed) is eligible.  As a major passed-over for promotion, he was precluded by statute (Public Law - 10 US Code Sec 631/632; passed-over Majors must retire at 20 years) from fulfilling his ADSC.  However, he fulfilled the maximum time allowed.  In addition, he was not notified that the benefit terms were unfulfilled when he retired. 

He was unable to fulfill his contract because of circumstances beyond his control, due to his non-selection for promotion.

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

STATEMENT OF FACTS:

On 30 Jun 91, the applicant entered the Regular Air Force and retired on 1 Jul 11, 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 and 1 day of active duty service. 

On 17 Aug 09, the applicant signed the Post 9/11 GI Bill Transfer of Educational Benefits Statement of Understanding (SOU). Item 1, Service Obligation, which states “For those individuals eligible for retirement on or after 1 Aug 10, and before 1 Aug 11, 2 years of additional service is required.”  As a result, the applicant incurred an ADSC for TEB thru 4 Aug 11.   

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 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 did not fulfill his 2-year service obligation.  IAW AFI 36-2306, Voluntary Education Program, Attachment 9, paragraph A9.18.8.5, being passed over for promotion is not an acceptable reason to consider an ADSC fulfilled.  

The applicant contends his ADSC should be adjusted to 30 Jun 11, his Mandatory Separation Date (MSD).  The applicant was approved for TEB, effective 5 Aug 09 and incurred an ADSC to 4 Aug 11 (IAW AFI 36-2306, Atch 9, A9.18.1.4.4); 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 2-year ADSC based on his eligibility status on the date of request (5 Aug 09).  In order to retain TEB benefits, the applicant had to serve to/through the Obligation End Date, 4 Aug 11.  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.  In accordance with (IAW) 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.

Should the Board grant the applicant’s request, DPSIT will adjust the applicant’s obligation end date to 30 Jun 11.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reiterated his original contentions and contends the correct application of the instruction is in DoD 1341.13, Post 9/11 GI Bill, which only addresses passed-over officers with the language from Enclosure 3, Paragraph 3.a.2: " ... precluded by either standard policy (Service or DoD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute." 

1.  The applicable statute in his case is Public Law - 10 US Code Sec 631/632 which states passed-over 0-4s must retire at 20 years.  10 US Code 632 specifically states “The retirement or discharge of an officer pursuant to this section shall be considered to be an involuntary retirement or discharge for purposes of any other provision or law.”  In conclusion, he served the maximum time allowable to earn his transfer benefit.

2.  The Air Force reference to the incorrect paragraph in the Instruction.  DoD 1341.13 addresses “individuals eligible for retirement” in Enclosure 3, paragraph 3.a.3., a clear interpretation of the dates offered is, for retention purposes, to persuade eligible individuals to extend their service to gain the transfer benefit.  For example, someone eligible for retirement between 1 Aug 09 and 1 Aug 11 needed 2 years of additional service - this calendar math which would necessitate they extend beyond 1 Aug 11.  On the other hand, he was not “eligible for retirement.” 

He was not in a position to choose to retire or extend - this was an “involuntarily retirement” by statute per Item 1 above, “I could not have extended my Service under any circumstances.”  He concludes, “This paragraph does NOT apply to my passed-over, involuntary-retirement circumstance.”

3. Undue Hardship Due to Lack of Notification.  “I transferred my benefit to my son on 5 August 09, long after I was passed over for Lt Colonel (July 2007).”  He was never notified that he would not receive this benefit which has created a financial hardship.

He does not believe it was the USAF or DoD’s intent for passed over Majors must extend their service beyond their ability to do so to earn the benefit; if so, then an arbitrary, unfair and possibly prejudicial circumstance was imposed against passed-over Majors.

The applicant’s complete response, with attachments, is at Exhibit E.

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 F.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In an e-mail dated 8 Jun 16, the applicant acknowledged receipt of the additional Air Force evaluation.

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

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 injustice.  We note AFPC/DPSIT recommends denial stating the applicant did not complete the required two year ADSC prior to his retirement on his MSD and there is no provision in the 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 the 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 service the maximum amount of time allowed by such policy or statute are eligible for TEB.  In this case, the applicant separated on his MSD of 30 Jun 11, which was established as a result of his second deferral for promotion to the grade of major 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 5 August 2009, he elected to transfer his Post-9/11 GI Bill Educational Benefits to his eligible dependents and on 30 June 2011, 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-2015-03171 in Executive Session on Thursday, 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 13 May 15, w/atchs.
	Exhibit B.  Pertinent Excerpts from Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSIT, dated 16 Nov 15, w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 24 Feb 16.
	Exhibit E.  Rebuttal, Applicant, dated 16 Mar 16.
	Exhibit F.  Memorandum, AFPC/JA, dated 6 May 16.
	Exhibit G.  Letter, Applicant, dated 31 May 16
	Exhibit H.  Email, Applicant, dated 8 Jun 16.

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.