RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01046

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  His active duty service commitment (ADSC) date/Obligation End Date of 12 Dec 13 associated with his Post 9/11 GI Bill transfer of benefits (TEB), be corrected to his discharge date of 30 Sep 13.

2.  The TEB website/database reflect that he has met his Obligation End Date and is eligible for Transfer of Education Benefits (TEB).

APPLICANT CONTENDS THAT:

His record is unjust, because his ADSC/Obligation End Date is later than his date of separation.  He was discharged involuntarily due to failure of selection for permanent promotion.  As a result of his involuntary separation, he has been advised by the Department of Veterans Affairs (DVA) that the $43,840.40 spent for his wife’s use of the Post 9/11 GI Bill TEB is now considered an overpayment/debt, because he did not complete the full period of obligated service required for eligibility to transfer his education benefits to his dependents.

He was informed on numerous occasions by Transition Assistance Program (TAP) counselors before his separation that, because his separation was involuntary, his wife would remain fully eligible for education benefits after his separation.  His DD Form 214 reflects he completed his first full term of service, and the Separation/Retirement Fact Sheet he received because of his non-selection for promotion to major, indicated that officers involuntarily separated would have their TEB Obligation End Date set to the member’s Date of Separation (DOS).

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 16 May 03.

On 28 Mar 13, the applicant was notified he was considered, but not selected, for promotion by the CY12C Major (LAF) Central Selection Board.  Since this was his second board which did not select him for promotion, the law required that he be involuntarily separated NLT 30 Sep 13.

On 30 Sep 13, the applicant was furnished an honorable discharge, and was credited with ten years, eight months, and seven days of active service.   

As the applicant served on active duty since 11 Sep 01, he is entitled to Post-9/11 GI Bill educational benefits in his own right.

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

AIR FORCE EVALUATION:

AFPC/DP3SA recommends denial, indicating there is no evidence of an error or an injustice.  The applicant’s TEB application was reviewed and approved effective 13 Dec 09; however, because he was passed over twice for promotion, he was required to separate 30 Sep 13 and did not fulfill his TEB obligation end date of 12 Dec 13.  In order to retain TEB benefits, a member has to serve to/through his Obligation End Date.  In accordance with AFI 36-2306, Voluntary Education Program, 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.  

The applicant did not fulfill his 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.

AFPC/JA recommends denial, indicating there is no evidence of an error or an injustice.  They concur with AFPC/DP3SA’s evaluation, the applicant’s ADSC/Obligation End Date should not be adjusted, and they offer additional analysis.  The plain language of 38 USC § 3319, Authority to Transfer Unused Education Benefits to Family Members, DoDI 1341.13, Post-9/11 GI Bill, and AFI 36-2306, Voluntary Education Programs, 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, the applicant separated from the Air Force two and a half months prior to completing his four-year ADSC.  Although he 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.  The applicant only had six years.

Regarding the applicant’s contention that, “The Separation/ Retirement Fact Sheet for Officers Not Selected for Promotion CY12C Major Selection Boards 3 Dec 12…, Section 4, indicated that officers who are involuntarily separated would have their TEB Obligation Date Set to the member’s DOS.”  That is not what the document says.  It says, “Officers who are involuntarily separated from the military services are entitled to certain post-separation transition benefits and services.  These benefits include…ability to be approved for Post 9/11 Bill Transfer of Education Benefits (TEB) to the member’s dependents, with the TEB Obligation Date set to the member’s DOS…”  [emphasis in advisory]  In the applicant’s case, he had already been approved for TEB with the obligation end date set, by law, to 12 Dec 13.  Thus, the information contained in the Fact Sheet does not apply to him.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contests virtually every point made by the OPR and AFPC/JA, arguing that their opinions highlight the injustice his wife and he have suffered due to his DOS being set earlier than his ADSC/Obligation End Date, which the law would not permit him to complete.  They had no indication that the TEB was in jeopardy leading up to involuntary separation, nor after until 30 Mar 15.  Had they been so advised, his wife would have discontinued use of the benefit immediately to avoid further indebtedness.  His wife continued to receive Certificates of Eligibility (COE) from the DVA, which had not been provided other information from the Air Force.  The latest COE, dated 22 Dec 14, which covered her Spring 2015 enrollment, was prepared nearly 15 months after he was involuntarily separated from Active Duty.  In support of his response he provides a copy of the 22 Dec 14 COE.

A complete copy of the applicant’s rebuttal w/atch is at Exhibit F.  

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 both error and injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, to include his rebuttal, we are persuaded the applicant is entitled to relief.  While we note the comments of AFPC/DP3SA and AFPC/JA indicating relief should be denied, we are convinced the evidence substantiates that corrective action is warranted.

Both advisories conclude that since the applicant did not meet the letter of the requirement for four years’ service after election of TEB, he was properly denied the benefit; thus, there is no error for the Board to correct.  As we will explain below, we do not believe an analysis that simply evaluates the presence or absence of error satisfies our mandate as a Board in equity.  We are cognizant of our duty to remove injustice as well as error.

The Post-9/11 GI Bill TEB is a retention program.  The Air Force received all but ten weeks of the four years’ retention the member agreed to (198 out of 208 weeks, or 95%) before he was required to separate by an intervening federal statute.  In effect, the federal government thus procured termination of the agreement after 95% performance by the other party, without incurring any performance obligation of its own.  While such a result may be allowed under the current TEB program, as administered, we are troubled by its inequity.  This applicant’s substantial performance is one element in our analysis of injustice.
	
We found it even more compelling that, before his separation, Air Force representatives mis-counseled the applicant and effectively encouraged him to run up an even larger debt.  The TAP counselors told the applicant that his wife would remain fully eligible for education benefits after his discharge.  Moreover, she continued to receive COEs from the DVA, stating she was eligible for 100 percent of the Post-9/11 GI Bill benefits, for nearly 15 months after he was involuntarily separated.  The applicant thus relied on Air Force assurances in incurring education expenses after separation.

We believe that the circumstances of this case, when taken together, rise to a level of injustice that compels relief.  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 1 October 2009, he elected to transfer his Post-9/11 GI Bill Educational Benefits to his dependents, with an obligation end date/ADSC date of 30 September 2013.

The following members of the Board considered AFBCMR Docket Number BC-2016-01046 in Executive Session on 18 Oct 17 under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01046 was considered:

	Exhibit A.  DD Form 149, dated 9 Mar 16, w/atchs.
	Exhibit B.  Applicant’s Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP3SA, dated 15 Aug 16.
	Exhibit D.  Memorandum, AFPC/JA, dated 14 Dec 16.
	Exhibit E.  Letter, SAF/MRBR, dated 19 Dec 16.
	Exhibit F.  Letter, applicant, dated 9 Jan 17. 

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.