RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00737

XXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His record be corrected to reflect full restoration of his Post-9/11 GI Bill Transfer of Education Benefits (TEB) to his dependents. 

APPLICANT’S CONTENTIONS

On 18 Feb 17, the SECAF waived four of his Active Duty Service Commitments (ADSC), one of those being the remaining seven months of his service commitment that he had left for the transfer of his Post-9/11 GI Bill benefits to his dependents.  After 21.5 years of honorable active duty service and seven deployments, he believes his dependents should have the opportunity to use his benefits. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force lieutenant colonel (O-5).  

On 17 Nov 13, the applicant signed Post 9/11 G.I.Bill Transfer of Educational Benefits Statement of Understanding (SOU) and incurred a four year ADSC to 17 Nov 17.  

On 1 Apr 17, as noted in Special Order No. AL – 000436, the applicant retired in the grade of lieutenant colonel (O-5).  He was credited with 21 years, 7 months and 20 days of active service for retirement.   
 
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.   According to the Defense Manpower Data Center (DMDC) the applicant submitted an application for TEB on 17 Nov 13.  On 19 Nov 13 the application was approved and the applicant received an ADSC to 16 Nov 17.  On 15 Dec 16, the applicant submitted a 7-day option request for retirement effective 1 Apr 17.  The applicant was informed a waiver was required for his TEB ADSC and he submitted a Best Interest of the Air Force waiver request.  Additionally, he acknowledged forfeiture of transferred benefits on 5 Jan 17 via the pre-retirement checklist.  

In accordance with DoDI 1341.13, Post-9/11 GI Bill, Enclosure 3, 3.g.(2)(c), and AFI 36-2649, Voluntary Education Program, A13.18.8.5.3., only an approved Hardship waiver as determined by the Secretary of the Air Force allows retention of transferred benefits.  The applicant retired with a Best Interest of the Air Force waiver not a Hardship waiver.  

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 13 Apr 20 for comment (Exhibit D), and the applicant replied on 12 May 20.  In the response, the applicant’s counsel argued that there is precedence from a similar case with an Army Lieutenant General (LTG) who appealed the decision of the Army Board for Corrections of Military Records (ABCMR) denying him the transfer of Post-9/11 GI Bill benefits to his dependents.  In this case, the court found that the Board must grant the LTG’s request because he was never provided individual counseling and because the documents he did receive were “not clearly understood by LTG…”  The court went on to conclude that if the LTG had been “counseled by someone more familiar” with the documents received, then he may have better understood what was required and when.  As such, the applicant’s case is no different.

The applicant did not understand the documents he received and was confused by the wording on his waiver which stated, “His active duty service commitment is waived for the purpose of allowing retirement/separation only; however, such waiver does not affect the Department of Veteran’s Affairs revocation of, or any obligation to repay, transferred benefits used under the Post 9/11 GI Bill in accordance with Department of Defense Instruction 1341.13, Enclosure 3, paragraph 3.g.(1).”  The wording here could easily be misunderstood to mean the waiver would not affect benefits and the applicant had no idea that this wording meant he had somehow waived his rights to the educational benefits he had earned.

It was not until Oct 2019, when the applicant went to complete the paperwork to finalize the transfer of benefits to his daughter that he learned the Air Force had checked “No” for the Transfer of Eligibility (TOE) Benefits for the GI Bill.  However, even the document he received from the VA does not implicitly state that he is no longer eligible.  If fact it begins with the phrase, “Congratulations, you have been approved by your Service to transfer your unused Post 9/11 GI Bill benefits to member(s) of your immediate family.” 

The applicant’s counsel then goes onto explain the circumstances around his decision to submit a 7-day option request for retirement.  In this regard, the applicant chose not to take a Vice Commander position, as he and his family were within five months of returning stateside from Turkey, where they had experience four IED attacks near their apartment and were still dealing with the after effects of the stressful assignment.  Given the situation, the applicant was under the impression that his only option was to apply for a waiver of his ADSC and retire.  No one explained the potential effect a specific type of waiver might have on his benefits, nor was he informed of the Humanitarian Reassignment Deferment program.  However, it is clear that the applicant’s situation certainly meets the requirements for a Hardship waiver.  

The Air Force should have ensured that the applicant understood the choices available to him and their potential impacts.  Given the unique circumstance and personal sacrifices that both the applicant and his family have endured, as well as, his 21 years of honorable service, including seven deployments, it is in the interest of justice, the Board should grant the requested relief.   

In support of the response, the applicant includes a letter from the Department of Veterans Affairs (VA) dated 18 Oct 19, stating that his TEB had been approved and an affidavit that states he did not know that he would lose his TEB.   He indicates that prior to his retirement he had spoken with the Director of the AF Colonel Management office, who told him that since his ADSC had been waived, it was considered accomplished.  

The applicant’s complete response is at Exhibit E.

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, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP3SA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board notes DoDI 1341.13, Post-9/11 GI Bill, Enclosure 3, 3.g.(2)(c), and AFI 36-2649, Voluntary Education Program, Paragraph A13.18.8.5.3., which states that only an approved Hardship waiver as determined by the Secretary of the Air Force allows retention of transferred benefits.  The applicant retired with a Best Interest of the Air Force waiver not a Hardship waiver.  Furthermore, he acknowledged this fact when he completed his pre-retirement checklist that he submitted on 5 Jan 17.   Therefore, the Board recommends against correcting the applicant’s records.

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 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.

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-2020-00737 in Executive Session on 11 Aug 20:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, dated 22 Nov 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP3SA, w/atchs, dated 31 Mar 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 13 Apr 20.
Exhibit E:	Applicant’s response, w/atchs, dated 12 May 20.

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.