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
AF | BCMR | CY2005 | BC-2001-00580A
The applicant’s complete review is at Exhibit K. _________________________________________________________________ ADDITIONAL HQ USAF/JAA EVALUATION: HQ USAF/JAA reiterates that the applicant’s original debt of $50,669.90 was reduced to $25,669.90 and, to the extent that his reconsideration request was for the repayment of this validly established debt owed to the US, it should be denied. DFAS summarizes the applicant’s indebtedness and adjustments thereto as follows: $50,669.90 Original...
AF | BCMR | CY2004 | BC-2003-01757
1450(f)(1) that states in all cases, the Air Force is required to notify the former spouse of any changes in SBP election. The Air Force did not answer her letter nor did they meet the one-year time frame to notify former spouses of changed elections as required by 10 U.S.C. Neither the servicemember nor the former spouse submitted a valid election within the one-year period required by law to establish former spouse coverage.
AF | BCMR | CY2004 | BC-2004-02796
The applicant did not add his spouse to his existing child coverage within the first year of their marriage. Furthermore, Item H1 clearly and specifically describes the post-retirement option: servicemembers, who at the time of retirement had no spouse or child, are eligible to elect SPB for these dependents within one year of acquisition. Furthermore, it was nearly five years after he retired that he got married and at the time of his marriage, he had no recollection of the one-year time...
AF | BCMR | CY2004 | BC-2004-00645
DPPTR stated that although the member claims he was unaware of the required one-year time limit, issues of The Afterburner, News for Retired Air Force Personnel, were routinely mailed to the applicant’s correspondence address on file at the finance center. Copies of The Afterburner reminded retirees of their SBP options when marrying after retirement. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence...
AF | BCMR | CY2004 | BC-2000-00961-2
A summary of the evidence considered and the rationale of the earlier decision by the Board is set forth in the Record of Proceedings at Exhibit F. On 10 January 2002, in response to a congressional inquiry, in behalf of the applicant, the AFBCMR denied the applicant’s request for reconsideration of her application (Refer to Exhibit G). To support this assertion, the applicant provided a personal statement, a statement from a Forensic Investigator who opines that the signature on the letter...
AF | BCMR | CY2004 | BC-2004-00953
_________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPPTR states that SBP spouse coverage is suspended when the spouse loses eligibility. He submitted this request for corrective action in a timely manner after being notified that coverage had been established on behalf of his current spouse. Novel, Member By majority vote, the Board recommended granting the requested relief.
AF | BCMR | CY2014 | BC 2014 03923
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03923 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: The daughter of the deceased former military member is requesting a waiver of The Barring Act which would entitle her to claim the arrears of pay (monies due and unpaid to a member at time of death) that have been barred. The amount of arrears pay that would be payable if the barring statute was waived is $36.93...
AF | BCMR | CY2005 | BC-2004-02431
However, he was placed on the retired list effective 1 June 2001 and received retired pay through November 2001. Although he was selected for continuation on active duty, the Retirements Processing Section at AFPC was not notified until after the 1 June 2001 retirement had consummated in MilPDS. The AFPC/DPPPO evaluation is at Exhibit E. _________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATION: While AFPC contends he was an active duty...
AF | BCMR | CY2004 | BC-2004-00823
The law in effect at the time of the applicant’s divorce did not allow retired members to provide SBP coverage even if they wished to voluntarily continue their former spouse’s eligibility. The fact that the member paid spouse premiums until 1987 is not in itself evidence of his intent to provide coverage on the applicant’s behalf. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force...
AF | BCMR | CY2004 | BC-2003-03233
_________________________________________________________________ APPLICANT CONTENDS THAT: Counsel states that, prior to the former member’s retirement from the Air Force, he elected SBP coverage for “spouse and child.” On 29 December 1983, the member and applicant divorced and their divorce decree incorporated a settlement agreement wherein the applicant would receive “all (100%) of the Husband’s Survivor benefits that can be paid to a former spouse.” The Defense Finance and Accounting...