ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                       DOCKET NUMBER:  BC-2001-00580
                                             INDEX CODE 128.10
                                             COUNSEL:  None

                                             HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

In  the  applicant’s  request   for   reconsideration,   he   requests
reimbursement for approximately $6,244.22, plus statutory interest.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant was a Reserve colonel who was  seriously  injured  in  a
head-on collision on 14 Sep 97 while  en  route  to  Reserve  duty  at
Columbus AFB, MS.  He was authorized incapacitation  pay  due  to  the
injuries sustained in  the  line  of  duty.   Title  3,  USC,  Section
204(i)(2) limits incapacitation pay (IP)  to  six  months  unless  the
Secretary approves an extension.

The applicant received IP from 20 Sep 97 until 19 May 98.  He  applied
for  additional  payments  beyond  the  six-month  window.    However,
authorization for IP terminated on 26 May 98 when he was placed on the
Temporary Disability Retired List (TDRL) on  27  May  98  with  a  40%
rating.

According to DFAS, the applicant was paid $50,669.90  in  IP  for  the
period 20 Sep 97 through 19 May 98.  DFAS learned the applicant earned
income from civilian sources during this time period that should  have
been deducted or offset from the total IP.   Title  37,  USC,  Section
204(g)(2), states that pay and allowances shall be reduced by  “income
from an income protection plan, vacation pay, or sick leave which  the
member elects to receive .  .  .  .”   DFAS  also  learned  that  USAA
(automobile insurance company) had paid the applicant $25,000 for lost
income/bodily  injury.   DFAS   asked   the   applicant   to   provide
documentation  from  his  employer  and  insurance  company,  but   he
initially  refused.   Around  29 May  01,  he  submitted  a  statement
claiming he had not earned civilian income during  the  relevant  time
period.

However, because DFAS suspected the applicant had earned  income  from
his  civilian  employer,  the  Defense  Investigative  Services  (DIS)
initiated an investigation, which confirmed the applicant  earned  pay
from his civilian employer and received at  least  $9,921  in  outside
employment.  Although the DIS could not provide an exact figure of the
applicant’s civilian employment, DFAS created a debt  for  the  entire
$50,669.90 until such time as the applicant cooperated.  As a  result,
his retired pay was offset to collect the debt.

The applicant submitted a 23 Feb 01 appeal to  the  AFBCMR  requesting
his remaining debt of $39,909.33 for IP from 20 Sep 97 through 19  May
98 be cancelled, he be paid IP for 20-26 May 98, and  he  be  refunded
$10,760.00 in recouped funds, with interest at 12%.  On 20 Jul 02, the
Board denied the  applicant’s  requests,  indicating  the  applicant’s
submission was unclear and incomplete.  However, the  Board  indicated
their willingness to reconsider the case should the  applicant  submit
additional  documentation   clarifying   his   contentions   and   the
circumstances of his case.  However, the applicant never responded.

For an accounting of the earlier decision by the Board, see the Record
of Proceedings at Exhibit F.

On 20 Aug 02 and 21 Jan 03, the AFBCMR Staff forwarded copies  of  the
case file to AFLSA/JACL for litigation pursuant to their requests.

The  following  information  was  extrapolated  from  the   AFLSA/JACL
(Exhibit H) and the HQ USAF/JAA  (Exhibit  I)  advisory  opinions  and
attachments, which provide greater details.

The applicant initially filed a lawsuit in Florida District  Court  to
prevent DFAS from collecting on the  $50,669.90  debt  established  to
recoup his IP.  He also sought pay for  20-26  May  98.   The  Florida
Court  ruled  it  did  not  have  jurisdiction  and   that   exclusive
jurisdiction was with the Court of Federal Claims.

During the Court of Federal Claims  proceedings,  AFLSA/JACL  obtained
information from the applicant’s employer suggesting he earned roughly
$22,000 in the form of paid  leave.   However,  the  accuracy  of  the
figure was difficult to verify because the  applicant  may  have  paid
money back to his employer to convert some amount  of  paid  leave  to
unpaid leave.  On 23 Apr 03, the Court of Federal Claims concluded the
$25,000 USAA payment should not have been considered income within the
meaning of Section 204(g)(2) and DFAS was notified the  applicant  was
entitled to have his total debt reduced by the $25,000 USAA  insurance
benefit.  However, the court ruled against the applicant  with  regard
to the remainder and held the Air Force properly created  a  debt  for
$25,669.90.

As a result, DFAS reduced the debt owed  by  $25,000  to  reflect  the
court’s decision allowing the applicant to receive  the  USAA  payment
without impact  on  his  IP.   According  to  DFAS-POCC/DE’s  advisory
(Exhibit M), the applicant’s original debt of  $50,669.90.90  was  for
basic pay (BP) only.  He  also  received  approximately  $8,997.65  in
Basic Allowance for Quarters (BAQ), Basic  Allowance  for  Subsistence
(BAS), and Variable Housing Allowance  (VHA).   He  was  credited  for
approximately $3,876.23 for Federal Insurance Contributions Act  (FICA
- Social Security) taxes, so his debt was only increased by $5,121.52.
  The debt of $30,791.42 has been fully collected.

Following the above  ruling  by  the  Court  of  Federal  Claims,  the
applicant filed a new petition on 3 Jun 03, according  to  AFLSA/JACL,
seeking a ruling to prevent the Air Force from asserting a  $28,553.52
medical  lien  that  threatened  to  impact  his  insurance   recovery
($25,000) from USAA.  The  medical  lien  was  filed  on  21  May  03,
pursuant to the Federal Medical Care  Recovery  Act.   This  claim  is
filed in most accidents involving military members, but the claim  was
not initially pursued in this  case  because  the  US  had  ostensibly
received full benefit of the payment from USAA through  the  reduction
of IP.  On 13 Aug 03, the court denied the applicant’s  new  petition;
however, the Air Force later dropped the claim against USAA.

On 15 Jul 04, the AFBCMR Staff received the  applicant’s  request  for
reconsideration.  In a letter dated 3 Jul 04, the  applicant  asserted
the US Court of Federal Claims ruled in his favor on the issue of USAA
payments ($25,000) not being “income from an income  protection  plan”
and ordered repayment.  He contends this leaves a balance owed him  of
$30,791.42 plus statutory interest.  He contends none of the  payments
were within the definitions of “vacation pay, or sick leave which  the
member elects to receive.”  He claims the recovery of  the  $30,791.42
from his retired pay was not authorized.

The applicant’s latest submission, with attachments, is at Exhibit G.

The AFBCMR Staff forwarded the applicant’s case to AFLSA/JACL  and  HQ
USAF/JAA on 12 Aug 04 for evaluation and comments.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JACL’s evaluation provided information on the applicant’s  court
proceedings, but indicated it should not be considered  to  constitute
legal advice.  Some of that information is summarized in the Statement
of Facts section of this Addendum to Record of Proceedings.

A copy of the complete evaluation, with attachments, is at Exhibit H.

HQ USAF/JAA indicates the applicant’s original request was  the  basis
of his lawsuit against the  US.   The  Court  ruling,  as  set  above,
addressed his original claim and further comment is unnecessary.   The
applicant now requests reconsideration of his earlier petition to  the
AFBCMR  based  on  newly   discovered   evidence.    JAA   notes   the
reconsideration request claims a different  amount  ($30,791.42)  than
the  original  appeal  ($55,791.42).   The  claimed  newly  discovered
evidence are deposition exhibits deposed in Jun 02 and were a part  of
the administrative record considered by the Court of Federal Claims in
rendering its decision.  Again, the Court’s decision stated  the  USAA
payment of $25,000 was not earned income and the balance of $25,669.90
was attributable to and/or subject to the  applicant’s  earned  income
from his civilian  employer,  and  a  proper  debt  owed  to  the  US.
Assuming the applicant’s current claim for repayment is, in part,  for
the court-established valid and collected  debt  of  $25,669.90,  that
portion of his reconsideration request should be denied.  The balance,
$5,121.52, may be related to the applicant’s IP claim for the month of
May 98.  However, the basis  for  this  part  of  his  reconsideration
request is unclear and the Board should  consider  requesting  him  to
clarify and substantiate this claim.

The copy of the complete evaluation is at Exhibit I.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s rebuttal  contends  the  $5,121.52  questioned  by  HQ
USAF/JAA is made up in part of the $3,111.12 of pay for 15-26  May  98
(12 days @ $259.26 = $3,111.12) and the  $1,963.83  of  FICA  for  the
$25,669.65, which was recovered as a debt.  He claims the FICA for the
collected debt was never refunded to him, and the $3,111.12  added  to
the $1,963.83 equals $5,074.95 and approximates the $5,121.52.

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.   The  applicant
claims a portion of the $5,121.52 balance is $3,111.12 for IP for  15-
26 May 98.  The administrative record reflects the applicant was in  a
“leave without pay” status from his employer and IP  for  this  period
appears  properly  payable.   The  applicant  claims   the   remaining
$2,010.40 is owed as “...FICA deductions for the $25,669.90, which was
recovered from [him] as a debt....”  If FICA deductions were made from
IP and then collected from him as a part or portion of the  $25,669.90
debt, reimbursement may be appropriate.  However, JAA  concludes  that
the amount of IP for the period in question, as well as  whether  (and
amount)  of  any  FICA  deductions  were  made   and   the   potential
reimbursement are matters best determined by DFAS.

A complete copy of the evaluation is at Exhibit L.

DFAS-POCC/DE advises the applicant was paid  IP  through  19  May  98,
which he has acknowledged.  His entitlement was stopped at  that  time
because he failed to provide a signed  letter  for  his  statement  of
earned income for the entire period prior to 20 May 98.  DFAS’ records
indicate he has not provided verification from  the  Florida  Attorney
General’s Office and/or USAA indicating  he  did  not  receive  income
between 20 Sep 97 to 26 May 98.  He claims he did not receive pay from
his civilian employer from 16-25 May 98 because he  was  in  a  no-pay
status during that time.  Due to his  not  providing  the  appropriate
information  requested  concerning  his  civilian  earnings,  any   IP
received during this time is collected  and  payment  cannot  be  made
until adequate proof of civilian earnings is provided.  In the absence
of such proof for the 20 Sep 97 through 26 May 98 period, any IP  paid
must be collected.  DFAS summarizes the applicant’s  indebtedness  and
adjustments thereto as follows:

       $50,669.90            Original amount of debt
       $ 8,997.75            Debt increased due to allowances paid but
not
                                             included in original debt
      -$ 3,876.23            Refund for FICA deductions
       $55,791.42            Final debt amount
      -$25,000.00            Debt reduced  due  to  court  ruling/USAA
benefit
       $30,791.42            Total  amount  of  debt;  collected  from
applicant

Based  on  the  fact  the  applicant  failed  to  provide  information
concerning his civilian earnings during the time he received  IP,  and
that he initially claimed he had no civilian earnings, DFAS recommends
denial.

A complete copy of the evaluation is at Exhibit M.

_________________________________________________________________

APPLICANT’S REVIEW OF THE ADDITIONAL EVALUATIONS:

The applicant disagrees with the DFAS advisory.  The verification from
the  FL  Attorney  General’s  office  was  provided  in  a   submitted
spreadsheet.  The verification from USAA was made unnecessary  by  the
US Court of Claims ruling.  He believes DFAS  recognizes  that  he  is
entitled to IP for 20-26 May 98 inclusive,  which  he  asserts  totals
$1,814.82.  Any increase in the debt due to allowances paid would  not
be for the entire original debt of $50,669.90 since it was reduced  by
$25,000.00.  He breaks down his debt and refund as follows:

       $50,669.90            Original amount of debt per DFAS
       $ 8,997.75            Debt increased due to allowances paid
      -$ 3,876.23            Refund for FICA deductions
      -$ 1,814.82            Pay and allowances for 20-26 May 98
      -$ 4,439.40            Allowances erroneously collected on the
                                             $25,000
       $49,537.20            Adjusted amount of debt
      -$25,000.00            Reduction for court rulings (USAA)
       $24,547.20            Amount authorized  to  be  collected  per
DFAS

He contends the collection of $30,791.42  exceeds  the  $24,547.20  by
$6,244.22, and interest is due on this amount since 1998.

The applicant’s complete response is at Exhibit O.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

After a thorough review of the evidence of record and the  applicant’s
submission, we are not  persuaded  reimbursement  is  warranted.   The
applicant’s contentions, and the changing amounts of his claims,  were
duly noted.  However, we  do  not  find  his  assertions,  in  and  by
themselves, sufficiently persuasive to override the  decision  of  the
Court of Federal Claims and the rationale provided by DFAS.  The court
concluded the $25,000 USAA payment should  not  have  been  considered
income and the applicant’s debt was reduced accordingly by that stated
amount, not by a certain percentage.   The  court  ruled  against  the
applicant with regard to the remainder and held the Air Force properly
created a debt for $25,669.90.  DFAS increased the debt  by  $5,121.52
for allowances not included in the original debt.  DFAS recommends the
applicant’s appeal be denied because he failed to provide  information
concerning his civilian earnings during the time he received  IP  from
20 Sep 97 through 19 May 98,  and  he  initially  claimed  he  had  no
civilian earnings.  While the  entitlement  to  IP  for  20-26 May  98
exists, payment is contingent on the applicant  providing  information
regarding civilian earnings, which he has apparently refused to do  to
DFAS’ satisfaction.  We are  not  persuaded  the  applicant  has  been
entirely forthcoming  throughout  these  proceedings  and  his  latest
inconclusive  submission  has  not  convinced  us  to   override   the
determinations  of  the  court  and  DFAS  regarding  this  case.   We
therefore  agree  with  the  recommendation  of  DFAS  and  adopt  the
rationale expressed as the basis for our decision that  the  applicant
has not sustained his burden of having suffered either an error or  an
injustice.  In view of the above and absent persuasive evidence to the
contrary, we find no compelling basis to recommend granting the relief
sought.

_________________________________________________________________

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  this  application  in
Executive Session on 17 May 2005, under the provisions of AFI 36-2603:

                             Mr. Charles E. Bennett, Panel Chair
                             Mr. James W. Russell III, Member
                             Mr. John E. B. Smith, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2001-00580 was considered:

 Exhibit F. Record of Proceedings, dated 10 Jul 02, w/atchs.
 Exhibit G. Applicant's Letter, dated 3 Jul 04, w/atchs.
 Exhibit H. Letter, AFLSA/JACL, dated 29 Sep 04, w/atchs.
 Exhibit I. Letter, HQ USAF/JAA, dated 19 Oct 04.
 Exhibit J. Letter, AFBCMR, dated 27 Oct 04.
 Exhibit K. Letter, Applicant, dated 18 Nov 04.
 Exhibit L. Letter, HQ USAF/JAA, dated 27 Dec 04.
 Exhibit M. Letter, DFAS-POCC/DE, dated 18 Feb 05.
 Exhibit N. Letter, AFBCMR, dated 22 Feb 05.
 Exhibit O. Letter, Applicant, dated 8 Mar 05.




                                   CHARLES E. BENNETT
                                   Panel Chair