RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01014

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

Her active duty service commitment (ADSC) date/Obligation End Date of 23 Apr 17 associated with her Post 9/11 GI Bill transfer of benefits (TEB), be corrected to her discharge date of 31 Jan 16.

APPLICANT CONTENDS THAT:

She was denied TEB because she was unable to complete her ADSC date/Obligation End Date, due to an involuntary mandated date of separation.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 28 May 06.

On 20 Aug 15, the applicant was notified of her second non-selection for promotion, and that law required her to be involuntarily separated NLT 31 Jan 16.  

On 24 Apr 13, the applicant applied for and was approved for TEB.  Her Obligation End Date of 23 Apr 17, to retain TEB benefits was established.

On 31 Jan 16, the applicant was furnished an honorable discharge, and was credited with nine years, eight months, and three days of active service.   

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 indicating there is no evidence of an error or an injustice.  The applicant applied for TEB 24 Apr 13 and her application was approved, incurring an ADSC/Obligation End Date of 23 Apr 17.  However, because she was passed over twice for promotion, she was required to separate NLT 31 Jan 16, prior to fulfilling the TEB obligation.  In accordance with AFI 36-2306_AFGM2, Voluntary Education Program, 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.
•	Hardship, in conjunction with retirement/separation, approved by the SECAF.

There is no provision in TEB guidance granting fulfilment 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.

AFPC/JA recommends granting the applicant’s request, indicating there is evidence of an error or injustice.  They do not agree with the AFPC/DP3SA advisory, and recommend the applicant’s ADSC should be adjusted making her eligible for TEB.  Title 38 USC § 3319, authority to Transfer Unused Education Benefits to Family Members, sets out the basic eligibility criteria for such transfer, and includes as eligible a member of the uniformed service who has served six years of service and enters into an agreement to serve at least four more years.  DoDI 1341.13, Post-9/11 GI Bill, states 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 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute.  AFI 36-23-6, Voluntary Education Program, mimics that language.  

At the time the applicant applied for TEB, she was an active duty Captain who had not yet met her in the promotion zone Major board.  Subsequent to her application for TEB, she was twice passed over for promotion to Major.  By law (10 USC § 632), an officer in the grade of Captain who is twice passed over for promotion to Major must retire (if eligible) or separate no later than six months from the date of notification of the non-selection.  Consequently, she was forced to separate on 31 Jan 16.

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 USC § 632—precluded applicant from serving the four years of service required.  Ergo, because she meets all other eligibility criteria, applicant is eligible to transfer her educational benefits

A complete copy of the AFPC/JA 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 Nov 16 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:

AFPC/JA now recommends denial indicating there is no evidence of an error or an injustice.  They now agree with the AFPC/DP3SA advisory, and recommend the applicant’s ADSC should not be adjusted making her eligible for TEB.  Title 38 USC § 3319, authority to Transfer Unused Education Benefits to Family Members, sets out the basic eligibility criteria for such transfer, and includes as eligible a member of the uniformed service who has served six years of service and enters into an agreement to serve at least four more years.  The plain language of these provisions states that where an individual has at least six years of service, but less than ten, he or she must serve four additional years.  In this case, applicant separated from the Air Force 15 months prior to completing the four year ADSC.  Although she was precluded by statute (10 USC § 632) from fulfilling the ADSC, the exception for that situation only applies to individuals who have at least ten years of service on the date of application (DoDI 1341.13, Post-9/11 GI Bill, Enclosure 3, Paragraph 3a(2)).  The applicant only had six years of service.  

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

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 19 Dec 16 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.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the AFPC/DP3SA and AFPC/JA’s 7 Dec 16, additional advisory, and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

THE BOARD RECOMMENDS 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-2016-01014 in Executive Session on 27 Jul 17 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01014 was considered:

	Exhibit A.  DD Form 149, dated 7 Jan 16.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP3SA, dated 22 Jun 16.
	Exhibit D.  Memorandum, AFPC/JA, dated 14 Nov 16
	Exhibit E.  Letter, SAF/MRBR, dated 17 Nov 16.
	Exhibit F.  Memorandum, AFPC/JA, dated 7 Dec 16.
	Exhibit G.  Letter, SAF/MRBR, dated 19 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.