RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2016-03710

XXXXXXXXXXXX	COUNSEL:  XXXXXXXXXX
	
	HEARING:  YES

APPLICANT REQUESTS THAT:

His records be corrected to reflect he completed his Active Duty Service Commitment (ADSC) associated with his Post-9/11 GI Bill Transfer of Educational Benefits (TEB).

APPLICANT CONTENDS THAT:

He voluntarily retired under a Force Management program and was miscounseled by the Air Force and Department of Veterans Affairs regarding retention of his transferred benefits.  During that time, there was no specific guidance as to whether or not his transferred benefits would be in question.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a retired Air Force Master Sergeant.  

On 14 Feb 13, the applicant signed the Post-9/11 GI Bill Statement of Understanding (SOU).

On 13 Jan 14, the applicant signed the Statement of Understanding for Airmen Applying for Retirement/Separation Under the Voluntary Force Management Program.

On 31 Aug 14, the applicant was furnished an Honorable discharge, with Narrative Reason for Separation: Vol Retirement, Sufficient Service for Retirement, and credited with 20 years, 7 months, and 25 days active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DP3SA recommends denying the application.  The ADSC waiver under the Limited Active Duty Service Commitment program allowed the applicant to retire, but the TEB was lost because he did not fulfill the required service obligation.  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 14 Sep 17 for comment (Exhibit D), and the applicant replied, via Counsel, on 9 Oct 17.  In his response, counsel, on behalf of the applicant, contended the advisory is in error as it relies on Air Force Instruction (AFI) 36-2306, Voluntary Education Program, which while in effect at the time of the applicant’s transfer of benefits and retirement, was superseded by AFI 36-2649, Voluntary Education Program.  Counsel further states changes in Department of Defense (DoD) guidance, published in the Federal Register on 7 Jun 13, applied to contracts in effect on and after that date, not just to those contract entered into after 7 Jun 13.  Finally, counsel contends the guidance provided in the DoD change, and in the revised AFI, allowing completion of service commitment if discharged due to force shaping, specifically applies to the applicant, and should allow retention of TEB.  The applicant’s complete response is at Exhibit E.

On 29 Mar 18, counsel, on behalf of the applicant, requested a final decision on this application as it was beyond 18 months from receipt and the Air Force Board for Correction of Military Records was in violation of the timeliness requirement in 10 USC 1557 (Exhibit F).

On 25 Jul 18, counsel, on behalf of the applicant, submitted notice of the revised DoD Instruction 1341.13, Post-9/11 GI Bill, which defines for the first time the term “force shaping initiative” for the purposes of determining whether a service member is considered to have completed their service agreement.  Counsel contended the DoDI is binding on the Air Force and requires immediate grant of the applicant’s petition, as his voluntary retirement was a part of a force shaping initiative (Exhibit G).

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board majority opinion the applicant is not the victim of an error or injustice.  The Board majority concurs with the rationale and recommendation of AFPC/DP3SA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Other than his own assertions, he has presented no evidence of an error on the part of the Air Force or that he was treated differently than others similarly situated. While the applicant asserts a lack of guidance, the Personnel Services Delivery Memorandum 13-64, Limited Active Duty Service Commitment, and associated Statement of Understanding, signed by the applicant, were specific regarding recoupment of TEB benefits in the event the applicant’s ADSC was not met.  Finally, the exception to meeting an ADSC due to force shaping/management initiatives referred to in DoDI 1341.13, is intended to insulate individuals involuntarily separated under these programs, consistent with other exceptions provided in this guidance.  Voluntary separations/retirements, within the control of the member, do not apply.  In the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.  Therefore, the Board majority recommends against correcting the applicant’s records.

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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-03710 in Executive Session on 4 Sep 18:

, Panel Chair
, Panel Member
, Panel Member

XXXXXX and XXXXXX voted not to correct the record.  XXXXXXXX voted to grant and submits a minority report.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 07 Sep 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP3SA, w/atchs, dated 29 Nov 16.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 14 Sep 17.
Exhibit E:	Applicant’s response (via Counsel), dated 9 Oct 17.
Exhibit F:	Counsel Correspondence, dated 29 Mar 18.
Exhibit G:	Additional Counsel Correspondence, w/atchs, dated 25 Jul 18.
Exhibit H.  Minority Opinion, dated 10 Sep 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.