ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-01916-2

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

Reconsideration be given to allow him to transfer his Post-9/11 GI Bill Transfer of Educational Benefits (TEB) to his dependents and change his Obligation End Date to reflect 1 Apr 17.  

RESUME OF THE CASE

The applicant is a former Air Force Reserve major (O-4).

On 17 September 2013, the applicant signed Post 9/11 GI Bill Transfer of Educational Benefits Statement of Understanding (SOU) and committed to a four-year service obligation with an obligation end date of 15 July 2017.  

On 13 September 2016, according to HQ ARPC/DPT Memorandum (Second Deferral for Promotion), dated 13 September 2016, the applicant was advised that he was not selected for promotion by the Reserve of the Air Force Selection Board.  Due to his second deferral for promotion, and in accordance with Title 10, USC, Section 14506, he would be automatically transferred to the Retired Reserve on his adjusted mandatory separation date, which was 1 April 2017.

On 1 April 2017, According to Reserve Order XXX, dated 1 March 2017, the applicant was assigned to the Retired Reserve List effective 1 April 2017, in the grade of major.  

On 25 October 2018, the Board considered and denied his request that his TEB be backdated to 15 March 2013; finding the applicant had provided insufficient evidence of an error or injustice to justify relief.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit E.

On 14 October 2020, the applicant requested reconsideration of his request to be allowed to transfer his Post-9/11 GI Bill Transfer of Education Benefits (TEB) to his dependents and to change his Obligation End Date to reflect 1 April 2017.  He contends he was passed over for lieutenant colonel O-5 promotion and given a mandatory separation date (MSD) of 1 April 2017.  He did not choose to retire.  He was given no option despite all of his best efforts and a sterling record.  

According to a pull from the Military Personnel Database System, the applicant has 20 years, 10 months and 29 days of satisfactory service for retirement.  In addition, the applicant has a Total Federal Commissioned Service date of 3 May 1996 and no break-in-service.  As such, when the applicant signed the SOU (17 Sep 13) to transfer his educational benefits he had more than 10 years of military service.  

The applicant’s complete submission is at Exhibit F.

APPLICABLE AUTHORITY

DODI 1341.13, Post-9/11 GI Bill, Enclosure 3, Paragraph 3, states:  Any service member on or after 1 August 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request to transfer that entitlement under this section, may transfer that entitlement provided he or she has at least 10 years of service in the Military Services (active duty or Selected Reserve) 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.

Per AFI 36-2306, Voluntary Education Program, Attachment 9, paragraph A9.18.1.3 - A member who has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either Air Force policy, DoD policy or statute from committing to 4 additional years of service and agrees to serve for the maximum amount of time allowed by such policy or statute.

AIR FORCE EVALUATION

ARPC/DPAT recommends denying the application.  The applicant elected to transfer his benefits to his dependents on 16 July 2013.  At the time the applicant transfer request was approved, the applicant incurred a 4-year service obligation ending 15 July 2017. The applicant signed the Statement of Understanding (SOU) agreeing to the 15 July 2017 obligation end date.  Due to being twice passed over for promotion, he applied to retire in February of 2017 and per his request he was placed into the retired reserves on 1 April 2017.  His retirement date of 1 April 2017 was prior to the published 12 July 2018 change to DoDI 1341.13, page 14, section (g) that states there is an exception for “discharge or release from active duty or the Selected Reserve, with an honorable discharge, due to twice failing to be selected for promotion as a commissioned officer on active duty or Selected Reserve.  1.Officer not offered selective continuation will have the TEB obligation end date adjusted to his or her separation or retirement date (if officer has not already fulfilled TEB obligation end date of 4 years).”  

Unfortunately, the change was not a retroactive change, therefore, his application comes under the published regulation at the time of his request.  Currently DPAT can only waiver the service obligation for members who have a previously approved transfer request and are being medically separated, as well as members who are reaching true High Year Tenure (HYT).  True HYT applies to Officers, LTC and above, who have reached 28 years of commissioned service, or members reaching the age of 62.  Unfortunately, they cannot waiver the service obligation for members who are being separated for twice passed over promotion prior to 12 July 2018.  The applicant has previously opened myPers tickets to address the issue, which were denied. 

The complete advisory opinion is at Exhibit H.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 28 June 2021 for comment (Exhibit D), the applicant responded on 27 July 2021 indicating he served with the Air Force and Air Force Reserve with distinction and pride for almost 21 years.  He strives at every opportunity to do his best and serve his country.  He did not establish a TEB date earlier because he was waiting to see if he and his wife were going to have more children, which they were unable to do.  His specific situation, which he believes to be unjustly punished, was specifically rectified by the interim change to DODI 1341.13 on 12 July 2018.  Clearly the DOD recognized that his situation, and that of others, was undesirable application of the instruction and subsequently changed it to waive the remainder of the TEB obligation for officers who were passed over for promotion.  Consider the totality of his 21 years of service, his intentions to continue to serve clearly displayed by his actions, and his retirement which came only as a result of the issued MSD given to him by the Air Force due to being passed over for promotion.

The complete response is at Exhibit I.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After thoroughly reviewing all Exhibits, the Board concludes the applicant is the victim of an injustice.  The Board notes that ARPC/DPAT recommends denial stating the applicant did not complete the required four-year service commitment prior to his retirement on his mandatory separation date (MSD) and there is no provision in TEB guidance to grant members passed over twice for promotion eligibility for TEB.  However, we are persuaded corrective action is warranted.  In this respect, the Board notes 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 completing the 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 retired on his Mandatory Separation Date of 1 April 2017, which was established as a result of his second deferral for promotion to the grade of lieutenant colonel and was precluded by policy from completing his four-year service obligation.  Therefore, we recommend the applicant’s records be corrected as indicated below.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 31 March 2013, he elected and was approved to transfer his Post 9/11 GI Bill Educational Benefits to his dependents and on 31 March 2017, he completed the required Active Duty Service Commitment for TEB as required by DODI 1341.13, Post-9/11 GI Bill.  

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-2021-00792 in Executive Session on 30 November 2021:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit E:	Record of Proceedings, w/Exhibits A-D, dated 13 November 2018.
Exhibit F:	Application, DD Form 149, w/atch, dated 4 January 2021.
Exhibit G: Documentary evidence, including relevant excerpts from official records.
Exhibit H:	Advisory Opinion, ARPC/DPAT, w/atchs, dated 26 May 2021.
Exhibit I:	Notification of Advisory, SAF/MRBC to Applicant, dated 28 June 2021.
Exhibit J:  Applicant’s Response, dated 27 July 2021.

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