RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-02234

	XXXXXXXXXXXXXXX		COUNSEL:  NONE

		HEARING DESIRED:  NO 
	


APPLICANT REQUESTS THAT:

His Transfer of Education Benefits (TEB) be restored and he be allowed to transfer his Post-9/11 GI Bill benefits to his dependents.  


APPLICANT CONTENDS THAT:

Due to his “best interest of the Air Force” waiver he was allowed to voluntarily retire on 31 Mar 12 and able to retain his TEB benefits despite not fulfilling the agreed upon TEB Active Duty Service Commitment (ADSC).  

All verbal communications and paperwork he received from the VA, DoD, and Air Force show he retains his TEB.  However, his son has been unable to receive his “Certificate of Eligibility” and  on 9 May 14 he received a letter from the VA stating that, “there are entries in the Air Force RNT system where you inquired about TEB and were notified that you would forfeit your benefit due to the voluntary retirement prior to your Obligation End Date.” This entry and any other notes in the Air Force and DoD systems that deny TEB are false and should be corrected.  Furthermore, his retirement before the three year ADSC commitment was waived for the “needs of the Air Force” and he has both VA and DoD documents that prove this and show his TEB is currently “in place” with 31 months of education benefits available for his son. 

In support of his appeal the applicant provides his DMDC TEB Summary from 30 May 14 and VADIR TEB Summary faxed 10 Mar 14 from Department of Veterans Affairs, indicating 31 months of his 9-11 GI-Bill benefit have been transferred to his son; a signed AF Form 1160, Military Retirement Actions, that states “Waiver of the GI Bill ADSC does not cause forfeiture of the member’s transfer of benefit;” a 9/11 TEB Statement of Understanding signed 27 Sep 10; a memorandum from the VA dated 9 May 14 denying him his TEB benefits; and his “Notice of Disagreement” letter dated 19 May 14 he provided in response to the VA’s decision.

The applicant’s complete submission, with attachments, is at Exhibit A.


STATEMENT OF FACTS:

The applicant’s Total Federal Active Military Service Date (TAFMSD) is 21 Mar 91

On 20 Sep 10, the applicant’s TEB was approved effective 20 Sep 10 and incurred an ADSC to 19 Sep 12 IAW AFI 36-2306, Attachment 9, A9.18.1.4.4. 

On 27 Sep 10, the applicant signed the Post 9/11 G.I. Bill Transfer of Educational Benefits (TEB) Statement of Understanding (SOU), acknowledging that he understood it was his responsibility to ensure he obtained the required retainability to fulfill the service obligation required in order to be eligible for TEB.  

The applicant voluntarily retired in the grade of Major (Maj, O-4) effective 1 Apr 12.  The narrative reason on his DD FM-214, Certificate of Release or Discharge from Active Duty, states “Sufficient Service for Retirement.”    

Post-9/11 GI Bill Transferability:  In accordance with DTM 09-003, Attachment 2, Paragraph 3:

“3.a.Any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of the individual’s request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill, and:

3.a.(3)Is or becomes retirement eligible during the period from August 1, 2009, through August 1, 2013, and agrees to serve the additional period, if any, specified in paragraphs 3.a.(3)(a) through 3.a.(3)(e) of this attachment.  A Service Member is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed under section 12732 of Reference (b).

3.a.(3)(d) For those individuals eligible for retirement on or after August 1, 2010, and before August 1, 2011, 2 years of additional service is required.”



AIR FORCE EVALUATION:

AFPC/DPSIT recommends denial.  The only acceptable waiver which allows a member to retain TEB benefits is a Hardship approved by the SECAF.  His contention regarding retaining TEB benefits are directly tied to the AF Form 1160, Retirement Application.  The information entered in the remarks section of AF Form 1160 stating he would retain TEB benefits was manually added and is invalid as it is not supported by any official AF or DoD guidance or regulation.  Additionally, the TEB Statement of Understanding (SOU) and Right Now Technology notes associated with his retirement request clearly indicate that if he fell short of the TEB service obligation, he would forfeit the benefit.  

Furthermore, the applicant’s DD Form 214, Certificate of Discharge from Active Duty, reflects a normal (voluntary) retirement, not a retirement in the best interest of the Air Force or any other reason (reduction in force, force shaping) which will allow fulfillment of a service member's obligation.  The waiver obtained by the member waived all applicable ADSC's for the purpose of retiring on the desired retirement date.

If the BCMR feels an injustice has occurred and decides to approve the case, his TEB Obligation End Date would be adjusted to 
31 Mar 12, or 1 day prior to the official retirement.  The member would then retain TEB eligibility.

The complete DPSIT evaluation, with attachments, is at Exhibit B.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 25 Aug 14 for review and comment within 30 days (Exhibit C).

In response to the Air Force evaluation, the applicant submits a personal memorandum where he refutes virtually every point made by the OPR and argues that he had every confidence that his TEB was intact when his retirement was approved. He had no reason to believe that a properly approved AF Form 1160 wasn’t enough to secure the TEB waiver and at no time during his 6 months leading up to retirement was he advised that he would not retain his TEB eligibility.  He is entrusting the AFBCMR to make a fair and impartial decision that will weigh his rebuttal carefully in its deliberations.  This decision will impact the education of his son and his future. 

The applicant’s complete response is at Exhibit D.  


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 error or injustice warranting corrective action regarding the applicant's TEB.  We note the comments of the Air Force office of primary responsibility; however, in reference to the AF Form 1160, Military Retirement Actions, it clearly indicates that approval of his ADSC waiver will not forfeit his transfer of benefits.  The board finds it reasonable the applicant relied on the statement contained in the AF Form 1160 and it appears his reliance on the document may have served to deny him the opportunity to serve the required ADSC.  Furthermore, we believe that the applicant had no reason to believe or was given any indication that his TEB transfer was not approved, given he has documentation from the VA and DoD stating that 31 months of his education benefits were transferred to his son.  If in fact the applicant was not eligible for an ADSC waiver to retain the TEB benefits, we cannot assume that he would not have fulfilled the service obligation required in order to be eligible for TEB.  Therefore, we find the evidence provided sufficient and believe it is in the interest of justice to grant the requested relief.  Accordingly, we recommend his records be corrected as set forth below.  


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 30 Mar 10, he elected to transfer his Post-9/11 GI Bill Educational Benefits to his dependents.


The following members of the Board considered AFBCMR Docket Number BC-2014-02234 in Executive Session on 20 Feb 15, under the provisions of AFI 36-2603:

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All members voted to correct the records, as recommended.  The following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 30 May 14, w/atchs.
Exhibit B.  Letter, AFPC/DPSIT dated 23 Jun 14, w/atchs.
Exhibit C.  Letter, SAF/MRBR, dated 25 Aug 14.
Exhibit D.  Applicant’s Rebuttal, dated 25 Sep 14.









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