RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-04809

(b) (6), (b) (7)(C) 	

COUNSEL:	NONE HEARING DESIRED:	YES

APPLICANT REQUESTS THAT:
1.	His obligated service date be changed to his retirement date of 30 April 2011.

2.	The	word	“voluntary”	be	stricken	from	his	DD	Form	214,
Certificate of Release or Discharge from Active Duty.

APPLICANT CONTENDS THAT:
The Veterans Administration (VA) is seeking recoupment of
$63,150.86 because he did not fulfill his obligated service that would allow him to transfer benefits to his spouse as part of the Post 9/11 GI Bill benefits. However, he asserts that he did fulfill his obligated service and only applied for retirement after being informed that he must apply after being twice passed over for promotion.

On 24 August 2010, he received his second non-select letter (attached) from United States Pacific Command (USPACOM), Camp Smith, Hawaii, which was different from his unit of assignment at the time, the Air Force Space Command (AFSPCOM), Colorado. He offers this information as it may be important in tracing administrative actions. Prior to receiving the second letter, he was concerned about how a forced retirement would affect the education benefits he had transferred to his spouse so he reached out to the AFPC Total Force Service Center (TFSC), as instructed to do for all questions regarding retirements. On 5 May 2010, almost one year before retiring, he received an email (attached) that states if a member takes a voluntary separation and has the Post 911 GI Bill Active Duty Service Commitment (ADSC) waived, then it is subject to recoupment. This same email further states that if a member is involuntarily separated then there is no recoupment. Since he was being told he had to retire, he understood  this to mean he was being involuntarily separated. Further, he never applied for or signed a waiver for the ADSC. With this information, he was confident that his obligated service date of 7 December

(b) (6), (b) (7)(C) 	

2011 was no longer a concern because the Air Force was telling him to retire on 30 April 2011.

He retired and began another chapter of his life. His wife was certified as eligible to receive benefits effective
25 May 2011, nearly a month after he retired. She began her course of study in Speech Pathology at Northeastern University, Boston, that fall semester. Additionally, his wife had to certify her eligibility every semester and received award letters from the VA starting from 18 October 2011 through 1 March 2013. Because she was receiving benefits, he never had reason to think that he did not fulfill his obligated service. His problems began in March 2015, two years after his wife had graduated when they received a letter from the VA stating that his wife’s transferred entitlement had been revoked because he did not meet the requirements of the program.

He appealed to the VA in Buffalo, NY and the VA Debt Management Center in St. Paul, MN; however, they seemed to not care about any of the facts of this case other than the Air Force says he did not fulfill his obligated service.

The fact that so much time has passed to identify this issue has left his family with a heavy financial burden. A burden that did not need to happen if the issue of his obligated service had been identified much earlier. If they had not been able to use the Post 9/11 GI Bill, there were other programs his wife could have pursued to lessen or eliminate the high cost of her education; however, these other programs were not afforded to her because she was using the Post 9/11 GI Bill.

It is his desire to have the Board review the facts and documents that he has presented and come to the conclusion that he did his due diligence to clarify his entitlements due to his impending involuntary retirement. He feels that this is what was supposed to happen, but did not as a result of the newness of the Post 9/11 GI Bill transferability rules that may have been compounded by the geographic differences of the non-select letter instructing him to retire, which came from USPACOM at Camp Smith, Hawaii, and not his unit of assignment.

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

STATEMENT OF FACTS:

The applicant initially entered active duty into the Regular Air Force on 19 June 1986.

On 1 May 2011, the applicant retired and was credited with
20 years of active service.
Post-9/11 GI Bill: Any member of the Armed Forces, active duty or Selected Reserve, officer or enlisted, on or after 1 August 2009, who is eligible for the Post-9/11 Bill, has at least six years of service in the Armed Force on the date of election, and agrees to serve four additional years in the Armed Forces from the date of election  can  transfer  their  unused  Post- 9/11 benefits to their dependents (Title 38 USC, Chapter 33, § 3319(b)(1)). Title 38 USC, Chapter 33, § 3319(f)(1) adds that the transfer of such entitlement can only be done while serving as a member of the armed forces when the transfer is executed.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D.

AIR FORCE EVALUATION:
AFPC/DP3SA recommends denial. The applicant contends his ADSC should be adjusted to 30 April 2011, to coincide with his mandatory date of separation (MSD) and date of retirement. The applicant was approved for the Transfer of Education Benefits (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 2 year ADSC based on the applicant’s eligibility status on the date of request (8 December 2009). In order to retain TEB benefits, the applicant had to serve to/through the Obligation End Date, 7 December 2011. The applicant was not retired under a Force Management Program, but was twice non- selected for Lieutenant Colonel. He retired effective 1 May 2011. In accordance with governing instructions, 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.
-	Hardship,	in	conjunction	with	retirement/separation, approved by the SECAF.

A complete copy of the AFPC/DP3SA evaluation is at Exhibit C.
AFPC/DP2STM-Transitions recommends denying the applicant’s request to remove the word “voluntarily” from his DD Form 214. In this regard, there is no error on the applicant’s DD Form
214 to warrant “voluntary” to be stricken from the form. The applicant applied for voluntary retirement and was properly coded in the Military Personnel Data System (MilPDS) and on his

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DD Form 214. Thus, no error exists. To grant relief would be contrary to the criteria established and enforced for other officers not selected for promotion.

By way of background, on 26 August 2010, the applicant was notified by his commander of non-selection for promotion. The memo, signed by the applicant and attached to this case, informed him that: “you will be within 2 years of qualifying for retirement (20 years TAFMS and 10 years TAFCS as of 31 Dec 2010, you will be retained on active duty until you are eligible to retire as an officer, unless an earlier separation is required under some other law or policy.”

Title 10, United States Code, Section 632, provides for the retention on active duty of twice non-selected officers who are within  2  years  of  becoming  retirement  eligible  (at  least
18 years TAFMS and 8 years TAFCS) as of the mandatory DOS for this board. The mandatory DOS for otherwise two-time non- selected officers is based on the last day of the 6th month after Principal Deputy Under Secretary of Defense (Personnel and Readiness) approval of the board results. The mandatory DOS for the applicant was established to coincide with the date he first became eligible to retire as an officer, i.e., 30 April 2011.

In the applicant’s case, his commander notified him about the results of the promotion board on 26 August 2010, which informed him of the MSD of 30 April 2011. On that same date, the applicant submitted an application for voluntary retirement through the virtual MPF. As outlined in the Administrative Release Instructions for the Calendar Year 2010A (CY10A) Lieutenant Colonel (Lt Col) (LAF/MSC) and Major (Maj) (MSC) Central Selection Boards (CSBs), officers had the choice to apply for a voluntary retirement or, if no action was taken, be projected for a mandatory retirement. The Air Force provided this choice to officers after many of them expressed concerns about the negative connotation or possible negative perception associated  with  the  verbiage  contained  on  their  DD  Forms
214 when retirement was a mandatory action.
The MPS Chief’s notification letter, sent to officers not selected for promotion for the second time and within 2 year of qualifying for retirement, i.e., Attachment 5 of the Administrative Release Instructions, states:

Since you will be within 2 years of qualifying for retirement (20 years TAFMS and 10 years TAFCS) as of [the mandatory DOS found in the AL message or AFPROMS News], you will be retained on active duty until you are eligible to retire as an officer, unless an earlier separation is required under some other law or policy. At the appropriate time, you should submit your application for retirement in accordance with the governing instructions.

In	addition,	the	governing	instructions	provided	general

procedures to service members on how to apply for voluntary retirement. It is stated “Officers who are notified of non- selection for promotion indicate whether they plan to retire on the MSD or voluntarily retire on the same or earlier date…” Since the applicant submitted an application for retirement through the virtual MPF, his retirement was coded as “voluntary” and his DD Form 214 correctly reflects his Separation Program Designator (SPD) as “RBC-VOL RETIREMENT: MAXIMUM SERVICE OR TIME
IN GRADE”. Had he not submitted an application, the SPD would have been “SBC-MANDATORY RETIREMENT: MAXIMUM SERVICE OR TIME IN GRADE.”

A complete copy of the AFPC/DP2STM-Transitions evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the applicant on 17 June 2016 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:
In a similar case, AFPC/JA, in advisory dated 6 May 2016, agreed with the applicant that he was eligible to TEB and recommended the application be granted. For the reasons to follow, AFPC/JA believed the AFPC/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, Voluntary Education Program, paragraph A13.18.1.1.2 mimics that language.

The plain language of these provisions state 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, precluded the applicant from serving the necessary years of service required. Therefore, because he met all other eligibility criteria, the applicant was 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 redacted AFPC/JA evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
He believes the memorandum prepared by AFPC/JA does not accurately reflect the facts of his case. The facts of the case mentioned are very similar to his and the governing instructions still applies; however, the dates mentioned in this memorandum do not match those of his case. He could not determine if the memorandum was intended for him or not because any identifying information has been redacted. To help correct this information, he encloses a document that he received from the DoD Manpower Data Center, dated 18 April 2011 which shows that his request for transfer occurred on 8 December 2009 and not in September 2011 as indicated by the memorandum to the board and this transfer created an obligation date of 7 December 2011, not September 2015.

Furthermore, he was not told by AFPC to complete a BCMR application to have his benefit reinstated.   He was informed by

AFPC that he was being forced to retire prior to completing his ADSC that was incurred for accepting the TEB and would lose the benefit.  AFPC responded with the enclosed email that says, “if a member is involuntarily separated then there is no recoupment.” Believing that being forced to retire was the same as being involuntarily separated he proceeded with retirement processing when he received his second non-select letter in August 2010.

In March 2015, his spouse received a letter from the VA stating she was ineligible for benefits because he did not complete his service obligation. Because she had already received benefits, the VA has asked her to pay back all benefits received in the amount of $63,150.86. It was only after many months of back and forth with the VA and the Air Force Discharge Review Board that they were told they needed to pursue a correction to his records through the AFBCMR. So he is asking the AFBCMR to change his obligation date from 7 December 2011 to his mandatory retirement date of 30 April 2011, thus showing he did fulfill  his obligation and transfer of post-9/11 benefits may occur.

The applicant’s complete submission, with attachments, 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 an injustice with regard to the applicant’s request to change his obligated service date, narrative reason for separation, and SPD code. We note the recommendation to deny from AFPC/DPSIT. However, we are persuaded corrective action is warranted based on guidance received from AFPC/JA that supported approval in a similar case. AFPC/JA noted that 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 serve 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 April 2011, which was established as a result of his second deferral for promotion to the grade of lieutenant colonel per 10 U.S.C. § 632. As such, we find the circumstances of the applicant’s case support that denial of TEB benefits was in error. In addition, the Board believes the applicant’s record should be corrected to show that he did not voluntarily apply for retirement but on 30 April 2011, he was retired with a narrative reason for separation of “MANDATORY
1.	

RETIREMENT: MAXIMUM SERVICE OR TIME IN GRADE” and separation
(SPD) code of “SBC,” which is consistent with other officers similarly situated and in accordance with Law. Therefore, we recommend the applicant’s records be corrected as set forth below.

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 RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

a.	On 8 December 2009, he elected to transfer his Post- 9/11 GI Bill Educational Benefits to his eligible dependents and on 30 April 2011, he completed the required Active Duty Service Commitment (ADSC) for TEB as required by DODI 1341.13, Post-9/11 GI Bill.

b.	He did not voluntarily apply for retirement, but on
30 April 2011, he was retired with a narrative reason for separation of “MANDATORY RETIREMENT: MAXIMUM SERVICE OR TIME IN GRADE” and separation (SPD) code of “SBC.”

The	following	members	of	the	Board	considered	AFBCMR	Docket Number BC-2015-04809 in Executive Session on 30 March 2017 and
7 December 2017 under the provisions of AFI 36-2603:

(b) (6), (b) (7)(C)
(b) (6), (b) (7)(C)
(b) (6), (b) (7)(C)

, 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 8 Nov 15, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, AFPC/DP3SA, dated 27 Apr 16. Exhibit D.	Memorandum, AFPC/DPSTM-Transitions,
dated 13 Jun 16.
Exhibit E.	Letter, AFBCMR, dated 17 Jun 16. Exhibit F.	Memorandum, AFPC/JA, dated 6 May 16. Exhibit G.	Letter, AFBCMR, dated 17 Apr 17.
Exhibit H.	Letter, Applicant, dated 7 Apr 17, w/atchs.

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 pertaining to AFBCMR Docket Number BC-2015-04809.

12/21/2017

X (b) (6), (b) (7)(C) 	

(b) (6), (b) (7) 	 (ECxa)miner, AFBCMR Signed by: J

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