RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2018-03366

xxxxxxxxxxxx	COUNSEL:  XXXXXXXXXXX
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

His service obligation date for transfer of his Post-9/11 GI Bill benefits be amended to reflect his retirement date of 31 Mar 16.

APPLICANT’S CONTENTIONS

His AF Form 4406, Post-9/11 GI Bill Transfer of Educational Benefits Statement of Understanding, shows 15 May 19 as his mandatory service date for education benefits transfer.  In section 7, it states, “discharge or release from active duty or Sel Res for a physical or mental condition, not a disability that did not result from his willful misconduct, but did interfere with performance of duty.”  In 2006, he was diagnosed with diabetes and obtained a waiver to continue serving, to include two deployments.  In 2014, his condition progressed to a point where the applicant was no longer able to deploy and needed to retire.  He believes this qualifies him for the exception noted in section 7d..  He received a waiver denial letter from his commander informing him that he had lost his Outside Continental United States eligibility while in a mobility position, and was required to retire.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air National Guard senior master sergeant (E-8) awaiting retired pay at age 60.

On 30 Mar 16, according to NGB Form 22, Report of Separation and Record of Service, the applicant was furnished an honorable discharge from the Air National Guard (ANG), with Authority and Reason:  AFI 36-3209, paragraph 3.12.6., Transfer to the USAF Reserve Retired List (ANG only), Separation Program Designator RBD (Sufficient Service for Retirement), and credited with 29 years, 6 months, and 12 days total service for retired pay.

On 31 Mar 16, according to Reserve Order XXXXX, dated 4 Dec 15, the applicant was assigned to the Retired Reserve.

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

AIR FORCE EVALUATION

NGB/A1Y recommends denying the application.  Based on the documentation provided, there is no evidence the applicant separated for medical reasons.  The applicant did have a medical condition, but his retirement was not coded as a medical separation that would authorize this office to modify his obligation end date due to medical reasons.  

On 16 May 15, the applicant completed a Post-9/11 GI Bill Transfer of Educational Benefits request.  His signed Statement of Understanding indicates an obligation end date of 15 May 19, in accordance with Department of Defense Instruction (DoDI) 1341.13, Post-9/11 GI Bill, Enclosure 3.3..  The applicant states he was separated for medical reasons, but provides no evidence in support of his contention.  The applicant’s separation/retirement documents do not reflect a medical separation.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 Jun 19 for comment (Exhibit D).  On 11 Jul 19, the case was closed by applicant request to allow time to prepare a rebuttal to the advisory opinion (Exhibit E).  Counsel, on behalf of the applicant, replied on 30 Nov 21, and the case was reopened.  In his response, he contended at all times relevant to this matter, the applicant was assigned to a mobility position in the ANG.  The position required that he be worldwide deployable, potentially to “a hostile environment under combat conditions to support an Air Force wartime operations plan.”  In 2006, he was diagnosed with diabetes but was able to obtain a waiver to continue serving, after which he deployed twice, once to Germany in 2009, and again to Afghanistan in 2012.  In Jan 14, the applicant underwent a review in lieu of medical evaluation board for Type 2 diabetes, and he was returned to duty with an assignment limitation code placing restrictions on his deployability.  Later in 2104, the applicant’s diabetes progressed to the point where he was no longer deployable, and on 2 Mar 15, a request was sent for a Commander’s Impact Statement.  

On 16 May 15, the applicant requested transfer of his education benefits and was subsequently approved.  The transfer confirmation placed the obligation end date at 19 May 19; however, on 28 Aug 15, the applicant was referred to a Medical Evaluation Board (MEB) through the Non-duty Disability Evaluation System (ND-DES).  According to the applicant, he was no longer able to deploy as required by his mobility position, his waiver had been denied, and his commander informed him these circumstances “required his retirement.”  The applicant applied for retirement, and a note on his Standard Form 600, Chronological Record of Medical Care, dated 28 Aug 15, stated the applicant had an established retirement date of 30 Mar 15 (sic) and no ND-DES was needed.  The applicant was placed on the reserve retired list, effective 30 Mar 16 (sic).  Because he did not complete the requisite 4-year service obligation after his election to transfer benefits, those benefits did not transfer. 

In accordance with Directive Type Memorandum 09-003, Post-9/11 GI Bill, 22 Jun 09 and DoDI 1341.13, members that have at least six years of service on the date of their transfer request approval, must agree to serve four additional years to receive the benefit.  One exception to that obligation was members who became retirement eligible, before 1 Aug 09, required no additional service obligation; however, this exception would no longer be in effect on 1 Aug 13.  Members who incur a service obligation, but fail to complete it, may still qualify for transfer if they are “discharged for a disability or a reduction in force or force shaping.”  

The advisory argument that the applicant’s retirement was not “coded as a [medical] separation” misses the crux of the error or injustice in this case.  The applicant does not argue that his separation was a medical separation in the strict sense; however, the underlying reason for his retirement before the service obligation date was for medical reasons.

The applicant was referred to the ND-DES, though he was not aware of this.  According to Air Force Instruction (AFI) 36-3212, Physical Evaluation for Retention, Retirement, and Separation, paragraph 8.19.2., 2 Feb 06 (incorporating Change 2, 27 Nov 09), members “who are medically disqualified for impairments unrelated to the member's military status and performance of duty shall be referred into the DES solely for a fitness determination upon the request of the member or when directed by the Secretary concerned.”  As such, implicit in his referral into the non-duty related DES is a determination that he was medically disqualified and required a fitness determination.  In addition, it appears likely that had he been processed through a Physical Evaluation Board for a fitness determination, he would have been found unfit; therefore, medically separated.

As an alternative, had the applicant submitted his transfer request before 1 Aug 13, he would have incurred no additional service obligation, because he was retirement eligible.  It is unfortunate that he did not submit his election before 1 Aug 13, but the fact that there was a scenario in which he needed no additional service to transfer such an important benefit to his family underscores the degree of unfairness and injustice that this case presents.

Finally, the applicant served ample time to justify now granting retroactive relieve as a matter of fairness.  He accrued approximately six years and eight months of service time after implementation of the transfer of benefits (TEB) program, which generally only required four years of additional service.  A correction now would not confer an unearned benefit to the applicant and his family; it would acknowledge his decades of faithful service, the disability-related context of his separation, and the overall unfortunate circumstances that precluded his TEB eligibility.

The applicant’s complete response is at Exhibit F.

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 reviewing all Exhibits, to include the applicant’s rebuttal, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of NGB/A1Y and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant had the opportunity to transfer his educational benefits in 2013 without incurring an additional service obligation, but chose not to do so.  Additionally, while the applicant did have a medical condition, he did not receive a medical discharge.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2018-03366 in Executive Session on 11 Jan 22:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atch, dated 22 Apr 18.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/A1Y, w/atch, dated 28 May 19.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 3 Jun 19.
Exhibit E:	Notification of Case Closure, SAF/MRBC to applicant, dated 11 Jul 19.
Exhibit F:	Applicant’s Response, w/atchs, dated 30 Nov 21.

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.