RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-04292
		
						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His Active Duty Service Commitment (ADSC) be changed from 3 Jan 16 to 29 Nov 15 in order to transfer his Post-9/11 GI Bill benefits to his dependents.

APPLICANT CONTENDS THAT:

He was twice passed over for promotion and received a retirement effective date of 1 Dec 15.  He was retirement eligible Nov 13 but knew of the outstanding ADSC.  He took an assignment overseas Mar 14 to complete the remaining time but was forced to retire from service overseas.  He suffered an injustice after being forced to retire 35 days short of fulfilling his ADSC associated with transferring his GI Bill benefits and served 97% of that (TEB ADSC) requirement after over 22 years of honorable active duty service.

His year group was not offered Temporary Early Retirement Authority (TERA) which he heard waived the Transfer of Education Benefits (TEB) ADSC for those that took early retirement.

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

STATEMENT OF FACTS:

On 20 Oct 93, the applicant initially entered the Regular Air Force.

On 4 Jan 12, his application was reviewed and approved for the Transfer of Education Benefits (TEB).  In turn, he incurred an ADSC date of 3 Jan 16 (in accordance with AFI 36-2306, Voluntary Education Program, Attachment 9, A9.18.1.3).

The applicant was passed over twice for promotion and was required to separate with a Date of Separation of 30 Nov 15.  

On 1 Dec 15, the applicant was furnished an honorable discharge, and was credited with 22 years, 1 months, and 11 days of active service.

The remaining relevant facts pertaining to this application are described in the memoranda 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 indicating there is no evidence of an error or an injustice.

The applicant did not fulfill his 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.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of his request, the applicant refutes virtually every point made by the OPR and argues that the Education Services is the branch that recommended he request a Change to Records to resolve his Transfer of Education Benefits (TEB) issues.  He also states that he served 3 years, 330 days of the 4 year commitment and was forced to retire after non-promotion.  He requested and was denied the opportunity to continue service to complete the ADSC obligation.

The applicant states that an enlisted airman facing High Year of Tenure could apply, agree to serve less time and receive the TEB; however, an officer retired after twice passed over does not have the same option.

He also states the TERA in mid-2014 gave non-retirement eligible members an opportunity to retire early and retain the benefit without serving the entire ADSC.  

The applicant’s complete submission is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION:  
AFPC/JA recommends approval.  AFPC/JA believes the DP3SA advisory is wrong and the applicant’s ADSC should be adjusted as requested.

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 are eligible for TEB.

Corresponding AFI provision in effect when applicant’s TEB request was approved (AFI 36-2306, paragraph A9.18.1.3) authorized transferability when a member with at least 10 years of service on the date of election, was precluded by statute from committing to 4 additional years of service but agreed to serve for the maximum amount of time allowed by such policy or statute.

In this case, a statute—10 USC § 632—precluded the applicant from serving the four years of service required.  Therefore, because he meets all other eligibility criteria, applicant is eligible to transfer his educational benefits.  In its advisory, DP3SA claims applicant’s situation does not fit one of the specifically enumerated reasons for considering an ADSC fulfilled prior to actual fulfillment (e.g., death, discharge for hardship, etc.).  However, that provision of the AFI is inapplicable.  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 agreement.

AFPC/JA agrees with the applicant that he is eligible for the transfer of educational benefits.  Accordingly, his request should be granted.

A complete copy of the AFPC/JA evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 22 Dec 16 for review and comments within 30 days (See 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 Mandatory Separation Date (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 on his MSD of 30 November 2015 which was established as a result of his third 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 30 November 2011, he elected to transfer his Post-9/11 GI Bill Educational Benefits to his eligible dependents and on 30 November 2015, 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-2015-04292 in Executive Session on 15 Feb 17 under the provisions of AFI 36-2603:

	, Panel Chair
, Member
, Member,

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04292 was considered:

	Exhibit A.  DD Form 149, dated 29 Sep 15, w/atchs.
	Exhibit B.  Applicant's Excerpts from Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP3SA, dated 8 Mar 16.
	Exhibit D.  Letter, AFBCMR, dated 6 Apr 16.
	Exhibit E.  Applicant’s Rebuttal, dated 2 May 16.
	Exhibit F.  Memorandum, AFPC/JA, dated 7 Dec 16.
	Exhibit G.  Letter, AFBCMR, dated 22 Dec 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.