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AF | BCMR | CY2004 | BC-2004-00395
Original file (BC-2004-00395.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00395
            INDEX NUMBER:  128.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be paid all retirement pay owed to him that is beyond the six-year
statute of limitation for filing a claim contained in  United  States
Code, Title 31, Section 3702.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His  military  retirement  pay  was  sent  to  the  wrong   financial
institution  due  to  an  error  made  by  the  Defense  Finance  and
Accounting Service (DFAS) US Military Retired Pay  section.   He  was
never notified of the error.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was placed on the retired list effective 7  Sep  94  in
the grade of technical sergeant (E-6) based on  having  completed  20
years of satisfactory service as a member of the Air  National  Guard
and reaching age 60.

_________________________________________________________________

AIR FORCE EVALUATION:

The DFAS US Military Retired Pay section states that no action can be
taken by them to pay the applicant the barred pay.  Title 31, Section
3702, USC limits them to paying only six years back from the date the
applicant filed a claim for his pay.

The applicant was placed on the retired list effective 7 Sep 94.  His
retired pay account was established with an incorrect  check  mailing
address.  Upon return of the payments, his account was  placed  in  a
suspended status.  In December 2003, the applicant made claim for the
unpaid retired pay.  Although the problem was caused by a  government
error, the applicant waited until  2003  to  note  that  he  was  not
receiving his retired pay.  For the period Dec 97 through Nov 03,  he
was paid $32,328.00 in gross monthly retired pay.  He would have been
due net pay of $15,340.00 for the period Sep 94 through Nov 97.  They
point out that in Nov 95, they were served with a  tax  levy  against
the applicant in the amount of  $27,286.89,  which  would  have  been
processed against his account had it been  active.   He  was  further
served with debts totaling  $1358.28,  which  also  would  have  been
collected.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation, applicant states that if
DFAS had investigated further,  they  would  have  realized  that  in
regards to the debts they reference he made an agreement with the IRS
for reimbursement, which has been paid.  He also indicates  that  for
the record he is enclosing a copy of a letter from the Navy  Exchange
showing that the issue of the debt to them had been resolved.  He  is
also expecting a letter from the IRS.

Since the Government made the error, he is asking to have  all  funds
owed to him paid.

The applicant’s complete response is at Exhibit E.

_________________________________________________________________

REQUEST FOR ADDITIONAL INFORMATION:

Since the documents referenced by the applicant regarding his debt to
the IRS and Navy Exchange were not included with his response to  the
Air Force evaluation,  he  was  asked  to  provide  copies  of  these
documents to the Board (Exhibit F).

_________________________________________________________________

ADDITIONAL INFORMATION:

Pursuant to the Board’s request, the applicant provided copies of the
documents showing that he had settled his debt to the  IRS  and  Navy
Exchange.  The applicant also provided  additional  response  to  the
original Air Force evaluation.  He states the assertion by DFAS  that
he was to contact  their  office  regarding  his  retired  pay  is  a
complete untruth and he did not contact them because he did not  know
they were sending his pay to the wrong bank.  He did not discover the
error until Oct 03.

The applicant’s complete response, with attachments, is at Exhibit G.

_________________________________________________________________

REQUEST FOR ADDITIONAL INFORMATION:

Since the documents provided by the applicant regarding the IRS  lien
against his pay did not indicate if it was paid in  full,  additional
information was requested regarding the payment of the lien  (Exhibit
H).

_________________________________________________________________

ADDITIONAL INFORMATION:

The  applicant  responded  to  the  Board’s  request  for  additional
information by providing copies of his  tax  returns  for  the  years
indicated on the IRS lien.  The documents did not resolve the Board’s
questions regarding whether the entire amount of      $27,286.89  was
paid.

The applicant’s response is at Exhibit I.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law
or regulations.

2.  The application was not timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of  the
applicant's complete submission in judging the merits  of  the  case;
however, we are not persuaded that the applicant has been the  victim
of an error or injustice warranting the relief requested.   While  we
note that DFAS has verified  an  error  was  made  by  directing  the
applicant’s retired pay to the wrong address, the applicant  has  not
presented any evidence of due diligence on his part to get the  error
corrected in a reasonable amount of time.  The Board simply does  not
find it reasonable the applicant was unaware for a period  of  almost
nine years he was not being paid his retirement pay.  Since  DFAS  is
prohibited from paying the applicant the balance of his  retired  pay
beyond six years by statute, we believe that it is incumbent  on  the
applicant to provide the Board with sufficient justification to grant
him the relief in spite of  the  limiting  effects  of  the  statute.
Therefore, in the absence of evidence to the  contrary,  we  find  no
compelling basis to recommend granting  the  relief  sought  in  this
application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error or  injustice;  that  the
application was denied without a personal appearance;  and  that  the
application will only be reconsidered upon the  submission  of  newly
discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered Docket Number  BC-2004-
00395 in Executive Session on 17 August 2004, under the provisions of
AFI 36-2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Ms. Renee M. Collier, Member
      Mrs. Barbara R. Murray, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Jan 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, DFAS, dated 12 Mar 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Mar 04.
    Exhibit E.  Letter, Applicant, dated 18 Apr 04.
    Exhibit F.  Letter, AFBCMR, dated 13 Jul 04.
    Exhibit G.  Letter, Applicant, dated 15 Jul 04, w/atchs.
    Exhibit H.  Letter, AFBCMR dated 1 Oct 04.
    Exhibit I.  Letter, Applicant, dated 8 Oct 04, w/atchs.




                                   ROSCOE HINTON, JR.
                                   Panel Chair

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