RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01943 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His Active Duty Service Commitment (ADSC) that was incurred as a result of the Post 9/11 GI Bill transfer of education benefits (TEB) to his dependents be removed. _________________________________________________________________ APPLICANT CONTENDS THAT: He was told that if a member wanted to revert to his/her original ADSC date, all one had to do was revoke their TEB, and they would be allowed to separate/transfer to the Guard/Reserve on their original ADSC date. In support of his appeal, the applicant provides a copy of a memorandum from the Nellis Air Force Base (AFB) Chief of Education and Training Office; and, an Officer Brief. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Regular Air Force in the grade of major (O-4). On 26 August 2009, the applicant transferred education benefits to his children and spouse by completing and signing the required Statement of Understanding. An ADSC with an expiration date of 25 August 2013 was generated. Without using any of the transferred benefits, the applicant revoked the TEB to his children and spouse on 20 May 2010. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSI recommends denial. DPSI states the purpose of the Post 9/11 GI Bill TEB is specifically to promote recruiting and retention. The Air Force requires members who execute a transfer of benefits to complete a Statement of Understanding that denotes the member’s service obligation and indicates that a formal ADSC will be updated in the member’s records. The form indicates the member can modify or revoke the transfer election at any time but does not establish a separate provision to cancel or revoke the ADSC if he/she revokes transferred benefits. Provisions are established in Air Force Instruction 36-2107, Service Commitments, paragraph 2.16, to request a waiver of the ADSC for the purpose of early release, separation or retirement. DPSI states the ADSC is not automatically cancelled upon revocation of transferred benefits. The applicant executed the TEB Application and an Air Force Form 4406, Post 9/11 GI Bill Transfer of Educational Benefits Statement of Understanding, which clearly stated the required service commitment and did not contain guidance that the ADSC would be cancelled if he revoked the transfer. In addition, the Post 9/11 GI Bill Personnel Service Delivery (PSD) Guide from which the Nellis AFB Education Center briefed the applicant does not contain guidance that the ADSC is cancelled if he revokes the transfer. DPSI states the rationale for maintaining the ADSC is that once the member is approved for TEB, he/she has the right to modify, revoke, or reallocate the benefits throughout the life of the benefit. The Air Force made a deliberate decision to require an ADSC to promote recruiting and retention, the reason why Congress created the transfer provision. DPSI indicates that if the applicant desires a Post 9/11 GI Bill waiver for the purposes of entering a PALACE CHASE transfer to the Air Force Reserve or Air National Guard, he can apply under the provisions of Air Force Instruction 36-2107. The complete AFPC/DPSI evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The memorandum provided by the Nellis AFB Chief of Education and Training states the following: “Nothing in the guide indicates that the ADSC would still be valid if the member decided to revoke the benefits to a spouse or dependents. I did not brief personnel that the ADSC would still be active if they revoked any months they had transferred to their dependents.” This is a different way of stating that she did tell him that the ADSC would revert back to the original date. There was a lack of clear guidance and understanding of how the program worked when it was first offered to him. He enrolled based on incorrect information that was briefed to him. His dependents have not received any benefits from the Post 9/11 GI Bill. He has revoked the transfer to them and intends that revocation to be permanent. He is now being forced to serve an additional four years on active duty for benefits that he will not receive. As the advisory opinion states, there are currently provisions to enter PALACE CHASE to transfer to the Guard or Reserve and request an ADSC waiver, but it does not mention that it would be very unlikely for the Air Force to approve a PALACE CHASE with two years left of his ADSC. He has been hired for a full-time position with the Florida Air National Guard. For family reasons, he has accepted this job offer with the hopes of moving permanently to Florida by November 2011. The applicant’s complete rebuttal is at Exhibit E. _________________________________________________________________ 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 injustice warranting relief. After reviewing the documentation submitted, the Board believes the applicant's ADSC should be changed. We note the comments from the Chief of the Nellis AFB Education and Training office indicating there was no guidance in the PSD Guide, at the time of TEB implementation, which addressed that the incurred ADSCs would still be valid if the member revoked their TEB election. It appears that through no fault of the applicant he was not made aware of the service obligation incurred due to TEB. Therefore, we elect to resolve any doubt in this matter in behalf of the applicant and recommend the records be corrected in the following manner. 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 APPLICANT, be corrected to show that his four-year ADSC he incurred for electing Post 9/11 GI Bill TEB be declared void. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-01943 in Executive Session on 10 March 2011, under the provisions of AFI 36-2603: XXXXXXXXXXXXXXXXXXXXX, Panel Chair XXXXXXXXXXXXXXXXXXXXX, Member XXXXXXXXXXXXXXXXXXXXX, Member All members voted to correct the records, as recommended. The following documentary evidence pertaining to Docket Number BC- 2010-01943 was considered: Exhibit A. DD Form 149, dated 24 May 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSI, dated 5 Jan 11. Exhibit D. Letter, SAF/MRBR, dated 14 Jan 11. Exhibit E. Letter, Applicant, dated 21 Jan 11, w/atch. XXXXXXXXXXXXXXXXXXXX Panel Chair