RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-03639
		
 						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

He be approved for transfer of his Post-9/11 GI Bill benefits.  

APPLICANT CONTENDS THAT:

The Department of Veterans Affairs (DVA) denied his claim for Post-9/11 GI Bill benefits because the Air Force did not approve the request for the Transfer of Education Benefit (TEB).  His mandatory retirement was before he was able to satisfy the balance of his Active Duty Service Commitment (ADSC) for TEB.  He requests the remaining 96 days of his ADSC be waived and he be granted TEB.

He applied for TEB in the summer of 2008 [sic] with the understanding it required a five [sic] year ADSC that would run concurrently with his other commitments.  Unfortunately, he was not selected for promotion to the grade of lieutenant colonel    (O-5) which forced him into a High Year Tenure (HYT) retirement on 1 May 2013, the ADSC for TEB was 4 August 2013.  Although he was willing and able, he was not permitted to serve the additional 96 days required to satisfy the ADSC for TEB.  

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

STATEMENT OF FACTS:

The applicant entered this period of active duty on 11 August 2003 and retired in the grade of major (O-4) effective 1 May 2013, with a narrative reason for separation of “Voluntary Retirement: Maximum Service or Time in Grade.”  He was credited with 9 years, 8 months and 20 days of active duty service this period.  The applicant was also credited with 9 years, 3 months and 7 days of prior active duty service.  

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 described in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C and F.

AIR FORCE EVALUATION:

AFPC/DP3SA recommends denial.  The applicant did not fulfill the four year service obligation.  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.  The applicant was approved for TEB; however, because he was passed over twice for promotion, he was required to separate and did not fulfill his TEB obligation.  His TEB application was reviewed and approved resulting in a four year ADSC based on his eligibility status on the date of request (5 August 2009).  In order to retain TEB benefits, the applicant had to serve through the obligation end date of 4 August 2013 but retired effective 1 May 2013.  In accordance with AFI 36-2306, Voluntary Education Program, Attachment 9, the following are acceptable reasons an ADSC can be considered fulfilled:  death of the member, disability in conjunction with retirement/separation or hardship in conjunction with retirement/separation which is approved by the Secretary of the Air Force.     
 
A complete copy of the AFPC/DP3SA evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In July 1999, he left active duty after 10 years of service.  By 2003, mobility pilot manning was waning and AFPC invited pilots to return to active duty.  He needed a job and the Air Force needed pilots, both interests were served.  However, there were those who did not approve so despite filling every square and checking every box, to include being the field grade officer of the year and interim director of operations for a top operations squadron and being stratified as number 1 of 15 officers in the grade of major in an Air Education and Training Command (AETC) schoolhouse squadron promotion was not in his future.  

He willingly and faithfully served 1,364 days of the 1,460 days of his ADSC for TEB and would have willing served the remaining 96 days.  He was forced out by the rules, not unwilling to fulfill his commitment.  He requests the Board amend his records to show he fulfilled his obligation for TEB.

A complete copy of the applicant’s response 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.  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 36-2306, paragraph A9.18.1.3) 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.  The DP3SA evaluation claims the applicant’s situation does not fit one of the specifically enumerated reasons for considering an ADSC fulfilled prior to actual fulfillment.  However, that provision of the AFI is inapplicable.  The applicant’s ADSC should have been adjusted at the time he was precluded by law from completing it.  He thereafter would have successfully completed the service commitment.  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:

A copy of the additional Air Force evaluation was forwarded to the applicant on 3 November 2016 for review and comment within 30 days (Exhibit G).  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/DP3SA recommends denial stating the applicant did not complete the required four year ADSC prior to his retirement 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 36-2306 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 is eligible for TEB.  In this case, the applicant retired effective 1 May 2013 based on his MSD of 30 April 2013 which was established as a result of his second deferral for promotion to the grade of lieutenant colonel 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 April 2013, 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-2015-03639 in Executive Session on 13 December 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 19 August 2015.  
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP3SA, dated 12 February 2016.
	Exhibit D.  Letter, AFBCMR, dated 8 March 2016.
	Exhibit E.  Letter, Applicant, dated 30 March 2016.
	Exhibit F.  Memorandum, AFPC/JA, dated 31 October 2016.
	Exhibit G.  Letter, AFBCMR, dated 3 November 2016.  

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.