RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04093

						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

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

APPLICANT CONTENDS THAT:

He was provided incorrect and incomplete information from the Air Force Personnel Center (AFPC) retirement branch.  It was outside their area of expertise to provide Post-9/11 GI Bill benefit counseling and guidance to retiring service members and he should have been referred to the education office.  Their inaccurate information resulted in him deciding to pursue a five month active duty service commitment (ADSC) waiver for the Post-9/11 GI Bill TEB.  

He was advised that the Department of Veterans Administration (DVA) controlled the Post-9/11 GI Bill benefit and AFPC did not revoke benefits.  As such, he believed his benefit would remain in-tact.  Had AFPC not provided bad information and referred him to the education office, he would have received proper counseling that would have resulted in him adjusting his retirement date by five months so he could complete his ADSC.  

His revocation of the Post-9/11 GI Bill TEB came as quite a surprise.  Any reasonable person who had already served 21 years of active military service would serve an additional five months of service in lieu of throwing away such a valuable benefit.  He fully believed retiring prior to any reduction in force (RIF) boards would help the Air Force solve the problem of having too many officers while at the same time providing an opportunity for someone else to have a satisfying and rewarding career in the Air Force as he did.  He could have easily been selected for separation/retirement under the provisions of the fiscal year 2011 Force Management Plan (FMP), and would have been allowed to keep the Post-9/11 GI Bill TEB, if he had not completed his service commitment.  

The applicant’s complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 6 June 1990.  

On 10 November 2010, the applicant was notified that AFPC Service Center had received his 2 November 2010 application for the Post-9/11 GI Bill TEB.  

On 12 November 2010, the Total Force Service Center (TFSC), notified the applicant that his application for TEB had been approved, causing him to incur a one-year ADSC, until 1 November 2011.  When his family member is eligible to apply for education benefits through the Department of Veterans affairs he/she could submit their application.  

On 2 February 2011, the applicant submitted a voluntary retirement eligibility request for 1 July 2011.  

On 22 February 2011, the applicant was advised by the TFSC that he was eligible to apply for retirement, effective 1 July 2011; however, he required a hardship waiver in order for his TEB ADSC to be considered fulfilled or submit a new retirement request with an effective date no earlier than the first day of the month following completion of his ADSC.  If approved for a waiver of his ADSC, the DVA may treat any benefits paid to dependents as an overpayment and may collect the amount of the overpayment.  

On 31 March 2011, according to AFPC/DP3SA, the applicant’s retirement application was approved with a Best Interest of the Air Force wavier.  

On 30 June 2011, the applicant was relieved from active duty and retired, effective 1 July 2011, in the grade of major (O4) with a narrative reason for separation of “Voluntary Retirement:  Sufficient Service For Retirement.”  He was credited with 20 years and 25 days of total active service.  

As the applicant served on active duty since 11 September 2001, he was entitled to Post-9/11 GI Bill educational benefits in his own right and was otherwise eligible to transfer said benefits to his dependents.  Since he was eligible for retirement after 1 August 2009, and before 1 August 2010, he required an additional one year ADSC for TEB.  Specifically, the applicant incurred a TEB ADSC of 1 November 2011 and he was unable to fulfill his ADSC by the time he retired on 1 July 2011.  

On 27 June 2014, the applicant was advised by the Department of Veterans Affairs that his claim for education benefits under the Post-9/11 GI Bill could not be approved.  Specifically, the DVA denied his claim for Post-9/11 GI Bill benefits because his transferred entitlement was revoked on 23 June 2014, by the Department of Defense (DoD).  It was decided that he did not fulfill the service commitment for transfer entitlement benefits.  
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 May 31, 2013, it incorporated Decision Type Memorandum (DTM) 09-003, date June 22, 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/DP3SA recommends denial.  The applicant retired under a Best Interest of the Air Force waiver and is ineligible for TEB.  During the retirement application process, AFPC Retirements and Separations Branch personnel informed the member via email that he had an ADSC associated with the Post-9/11 GI Bill transfer of benefits.  He was further advised that in order to obtain approval for retirement, he must submit a “Hardship” waiver request.  Moreover, the applicant stated he was advised by AFPC Retirements and Separations Branch personnel that the waiver only pertained to his ADSC obligation and not the benefit.  

In accordance with AFI 36-2306, reasons an ADSC/Obligation End Date can be considered fulfilled are due to (1) death of the member, (2) Disability, in conjunction with retirement/separation from the Air Force, or and/or (3) Hardship, in conjunction with retirement/separation, approved by the SECAF.  

A complete copy of the AFPC/DP3SA evaluation is at Exhibit C.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant disagrees with the timing of the provided guidance stated in the advisory opinion.  It is the exact information that he required and requested in order to make an informative decision back in 2011.  He specifically asked for the information that the advisory opinion has now provided to the board.  The opinion reinforces the points he made in his original submission.  The advisory opinion was prepared by an education services specialist, which ironically is the fundamentally missing element he identified in his application.  He finds it interesting that it is not mentioned in the advisory opinion that he was never told to see an education services specialist or was he provided the referenced Air Force instruction (AFI) 36-2306 during the time he was attempting to make his ADSC waiver decision.  The very first mentioning of the AFI was during his review of the advisory opinion.  It is clear that he needed the advice from an education services specialist prior to requesting the ADSC waiver, which would have resulted in him completing the remaining five months of his ADSC.  

He has trouble with the approach of the review of his case due to the failure of looking at the entire scope of the issue and narrowly focusing on one page from the Air Force Personnel Center, which states the Veteran’s Administration (VA) could revoke the benefit if he failed to complete his ADSC.  He consulted with both the VA and AFPC specifically about this prior to deciding on seeking an ADSC waiver.  Neglectfully all circumstances were not considered because there were many facts and circumstances that created this perfect storm resulting in a uniformed decision, and solely based on one statement out of the entire case formulated the opinion to deny his request.  

He was told by the VA that they do not revoke benefits, but it is done by the individual services.  In addition, he was advised by AFPC that his waiver only pertained to the ADSC obligation and not the benefit.  The only reason his case is being heard is because the Air Force is responsible for creating this particular situation by not having solid processes and procedures in place.  Also, because unqualified and untrained personnel staff provided erroneous information that resulted in a decision based on inaccurate information.  

He believes his appeal clearly states the advice and guidance was the key missing component for him to make an informed decision.  Having never heard or nor advised of this AFI, he could not reasonably be expected to know the rules nor be held accountable for the content since he was not properly advised.  

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

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, to include his rebuttal response, 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 or injustice.  While the applicant contends he should have been briefed by an education services specialist prior to making a decision in regards to his ADSC waiver, we note he received notification through TFSC that he needed an approved hardship waiver in order for his ADSC to be considered fulfilled.  Evidence reflects that this was clearly communicated to the applicant and he still chose to voluntarily retire under a Best Interest of the Air Force waiver.  In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.  

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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-2015-04093 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-2015-04093 was considered:

	Exhibit A.  DD Form 149, dated 22 September 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP3SA, dated 9 February 2016.
	Exhibit D.  Letter, AFBCMR, dated 2 June 2016.  
	Exhibit E.  Letter, Applicant, dated 26 June 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.