RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2004-02431
            INDEX NUMBER: 100.00

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  7 FEB 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

The entire garnishment process that has taken  place  over  the  past  three
years be waived, with reimbursement of  all  garnishments  he  has  paid  to
date, and he be retired in the grade of lieutenant colonel.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

Despite his selection for continuation on active duty,  he  was  erroneously
retired in the Military Personnel  Data  System  (MilPDS)  and  never  fully
incorporated back into the finance and personnel data bases.

The applicant states that action was taken  to  change  his  status  in  the
personnel system from  retired  to  active  duty;  however,  the  Air  Force
Personnel Center (AFPC) switched to the new MilPDS personnel data  base  and
no one knew how to work the new data base.  As a result, he  was  no  longer
in the active duty finance data base, but rather the retirement  data  base.
This resulted in recoupment of both active duty and retired pay;  production
of an inaccurate W-2,  which  caused  problems  with  the  Internal  Revenue
Service (IRS); and the 14 months he was removed from the  active  duty  data
base excluded him from promotion opportunities.   Further,  the  involuntary
collection action was taken without his consent  or  a  status  specifically
authorizing the collection, withholding of  subsistence  allowances  to  pay
debt, and withholding of over 25% of base pay.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was considered and not selected for promotion to the grade  of
lieutenant colonel by Calendar Years 1999A, 1999B, and 2000A (CY99A,  CY99B,
& CY00A) Lieutenant  Colonel  Central  Selection  Boards.   He  was  offered
continuation by the CY99B and CY00A boards.  On  11 May  2001,  he  accepted
continuation and  his  Date  of  Separation  (DOS)  was  established  as  28
February 2007 (24 years of active commissioned service).   However,  he  was
placed on the retired list effective 1 June 2001 and  received  retired  pay
through November 2001.  On 1 December 2001,  he  began  receiving  a  normal
active duty paycheck.  Based on his new DOS of  28  February  2007,  he  was
considered by the CY01B Lieutenant Colonel  Central  Selection  Board  which
convened on 5 November 2001, and was not selected.  On 31 January  2002,  he
applied for a 1 August 2002 retirement.  He was released  from  active  duty
on 31 July 2002 and retired effective 1 August 2002.

On 11 April 2005, DFAS advised him that his debt of  $7,105.82  was  reduced
to $3,280.91, due to  a  credit  for  Basic  Allowance  for  Housing  (BAH),
refunds for Social Security and  Medicare  withholdings,  and  a  refund  of
Servicemen Group Life Insurance (SGLI) premiums.  DFAS further  advised  him
the remaining debt was due to an over-collection of 2002 federal income  tax
withholdings, and that since it occurred in a prior year, they  were  unable
to retrieve the funds from the Internal Revenue  Service  (IRS).   Based  on
payments received totaling $7,196.43  over  the  period  June  2004  through
April 2005, he will receive a refund in the amount of $3,914.95.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPRRP states, in part, that Special  Order  AC-010457,  issued  on  26
March 2002, released the applicant from active  duty  on  31 July  2002  and
retired him effective 1 August 2002.  The applicant  has  had  numerous  pay
problems because his original mandatory  retirement  date  of  1  June  2001
consummated, along with  transactions  to  Defense  Finance  and  Accounting
System (DFAS) to start his  retired  pay.   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.  Because the retirement processed, he began to receive retired  pay.
When the manifest error processed to place him  back  on  the  active  file,
DFAS was obligated to recoup his retired pay; however,  at  the  same  time,
there was a delay in restarting his active duty pay.

The AFPC/DPPRRP evaluation is at Exhibit C.

DFAS-RPB-TQAL/CL recommends the application be denied and states,  in  part,
that since both the active duty and retired pay systems reflect  the  proper
retirement date of 1 August 2002, the collection action is proper.

The DFAS-RPB-TQAL/CL evaluation is at Exhibit D.

AFPC/DPPPO recommends the application be denied and states,  in  part,  that
the applicant met all lieutenant colonel selection boards  he  was  eligible
for and the problems incurred with his DOS  did  not  affect  his  promotion
eligibility.

The AFPC/DPPPO evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

While AFPC contends he was an active duty member  until  his  1 August  2002
retirement, as late as February 2002, the personnel  and  pay  data  systems
showed him as being retired.  The Air Force should  be  required  to  defend
its garnishments by addressing his claims of inaccuracy,  over  garnishment,
and regulatory violation.  Over the  past  three  years,  he  has  developed
hypertension due to the stress of this situation.  The Air Force refused  to
provide him active duty treatment for the condition because he  was  carried
as a non-Prime, TriCare retiree, rather than an active duty member.

Applicant’s complete response is at Exhibit G.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  After thoroughly  reviewing  the  evidence
of record and the applicant’s complete submission, we  find  no  basis  upon
which to recommend favorable consideration of his requests.   The  applicant
was considered and not selected for promotion to  the  grade  of  lieutenant
colonel by the CY99A, CY99B, & CY00A Lieutenant  Colonel  Central  Selection
Boards.  He was offered continuation by  the  CY99B  and  CY00A  boards  and
initially declined, instead requesting to retire on 1 June  2001.   However,
on  11 May  2001,  approximately  three  weeks  prior   to   his   projected
retirement, he accepted continuation and  his  DOS  was  established  as  28
February 2007 (24 years of active  commissioned  service).   However,  since
the Retirements Processing Section was not notified until after  the  1 June
2001 retirement had consummated in the MilPDS, he was placed on the  retired
list effective 1 June 2001 and received retired pay through  November  2001.
Based on his new DOS of 28 February 2007, he was  considered  for  promotion
by the CY01B Lieutenant Colonel Central Selection Board  which  convened  on
5 November 2001, and was not selected.  While the  problems  he  experienced
with his retirement date are unfortunate, he bears some  responsibility  for
this, and should have  anticipated  the  negative  consequences  of  waiting
three weeks prior to his approved retirement date to decide that he  desired
to  continue  on  active  duty.   Regardless,  since  dual  compensation  is
prohibited by law,  the  overpayment  was  garnished  accordingly.   He  has
received all pay to which entitled and his retirement of  1 August  2002  is
correct.  Further, on 11 April 2005, DFAS reduced his debt of  $7,105.82  by
$3,280.91, due to  a  credit  for  BAH,  refunds  for  Social  Security  and
Medicare withholdings, and a  refund  of  Servicemen  Group  Life  Insurance
(SGLI) premiums.  The remaining debt is due to an  over-collection  of  2002
federal income tax withholdings, to which he  may  appeal  to  the  Internal
Revenue Service (IRS) for overpayment of taxes.  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-2004-02431
in Executive Session on 10 May 2005, under the provisions of AFI 36-2603:

                       Ms. Cathlynn B. Sparks, Panel Chair
                       Mr. Patrick C. Daugherty, Member
                       Ms. Marcia Jean Bachman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Jul 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRRP, dated 23 Aug 04.
    Exhibit D.  Letter, DFAS-RPB-TQAL/CL, dated 7 Sep 04.




    Exhibit E.  Letter, AFPC/DPPPO, dated 15 Oct 04.
    Exhibit F.  Letter, SAF/MRBR, dated 22 Oct 04.
    Exhibit G.  Letter, Applicant, undated.




                                   CATHLYNN B. SPARKS
                                   Panel Chair