RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02163
            INDEX CODE:  110.02

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Separation Program Designator (SPD)  code  be  changed  to  “FCC”,
Resignation-Voluntary Separation Under  Early  Separation  Program  or
possibly  “MCN”,  Voluntary  Separation  with   Voluntary   Separation
Incentive (VSI), rather than, “FBK”, Resignation-Voluntary  Separation
Based on Completion of Active Duty Service Commitment,  in  order  for
him to receive VSI under the fiscal year 2007 (FY07) Air  Force  Force
Shaping Program.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In October 2006, he applied for voluntary separation from active  duty
and  requested  Voluntary  Separation  Pay  (VSP).   His  request  was
disapproved by the Air Force Personnel Center (AFPC).  He was not able
to find a satisfactory answer to his question of why his  request  was
disapproved.  Since he had already applied  for  a  civilian  job,  he
decided to reapply without  the  request  for  VSP.   He  received  an
approval, but he was not sure whether the approval was for his initial
request  with  VSP  or  for  his  second  request  without  VSP.    On
30 November 2006, the day of his scheduled separation, he  received  a
message from his finance center informing him he was to  receive  VSP.
He asked his local finance center to confirm his eligibility for  VSP.
He subsequently received VSP on 4 December 2006.  In January 2007,  he
was alarmed as his 2006 W-2 form  indicated  he  had  been  paid  over
$200,000 during 2006.  This amount was more than his  income  and  VSP
combined. He contacted DFAS and was  told  that  his  record  appeared
“jacked up” and that it would have to be evaluated.  He was also  told
his record showed him owing a debt.  In February 2007, he  received  a
letter from DFAS indicating he owed the Air Force  (AF)  approximately
$62,000 after correction of his  W-2  form.   When  he  retrieved  the
“corrected” W-2 form however, he  learned  that  the  W-2  form  still
reflected the after tax value of his VSP  as  income.   He  calculated
that his W-2 form had in  fact,  reflected  twice  the  value,  before
taxes, of his VSP and the second, or corrected W-2 form, reflected the
after tax value of the payment he actually received.  He concluded the
“debt” was in fact the result  of  a  series  of  apparent  accounting
errors and, on 1 March 2007, he sent a letter to DFAS indicating such.
 On 13 March 2007, he received a letter from DFAS indicating his  debt
arose from an incorrect SPD code listed on his DD Form  214  upon  his
separation from active duty.  While  the  letter  from  DFAS  did  not
explain the apparently fraudulent double entry of the VSP on  his  W-2
form, it did claim that the characterization on his “corrected W-2” of
the after tax value of the VSP as  income  was  required  by  the  DOD
Financial  Management  Regulation  (DODFMR)  Volume  7A  and  Internal
Revenue Service (IRS) regulations.  He feels DFAS’s  claim  is  absurd
and incorrect as a matter of law.  Further, the DFAS  letter  did  not
cite a specific provision of either.  He cites 26 United  States  Code
(U.S.C.) Chapter 61.  He feels the issuance of both the inaccurate  W-
2’s may have constituted a crime on  the  part  of  DFAS.   The  False
Official Statements Act, 18 U.S.C. Section 1001, prohibits the knowing
or entry of materially false information into  official  records.   In
summary, the inclusion of an incorrect SPD code on his DD Form 214 was
an administrative error.  Even if his separation  were  supernumerary,
equity would require correcting his record.  He feels that  correction
of his DD Form 214 is the surest means to terminate the  DFAS  action.
He believes a DD Form  215  has  already  been  accomplished  possibly
correcting the SPD code as one such form was received by  his  parents
in the mail in late February 2007.  He cannot locate the form and  his
efforts to obtain it from AFPC  and  the  National  Personnel  Records
Center (NPRC) have been unsuccessful.  He  has  suffered  considerable
harm as a result of DFAS’s actions.  He has spent at least  100  hours
of his own extremely limited personal time trying to establish a basis
for the established debt and the most efficacious  way  of  countering
it.  DFAS has ordered that he pay almost $2,000  a  month  while  this
dispute continues.  Meanwhile, the inability of DFAS  to  provide  him
with an accurate W-2 form has prevented him from completing  his  2006
Federal income tax return and forced him to  file  for  an  extension.
The correction of his SPD code to one  that  is  associated  with  VSP
would both terminate the abusive DFAS collection  effort  and  require
them to provide him with an accurate report of his  income,  including
the tax already withheld from his VSP payment.

In support of  his  appeal,  the  applicant  has  provided  copies  of
pertinent Military Personnel Flight (MPF) letters  and  documentation,
force shaping information, email  communiqué,  correspondence  between
applicant and DFAS, and a copy of a previous BCMR application.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant earned a law degree in 1997 and joined the Regular Air Force
in March 1999.  He was appointed in the grade of captain with  a  date
of rank (DOR) of 26 September 1999.  He applied for  separation  under
the FY07 Force Shaping Program – VSP Incentive in October 2006.   AFPC
discovered he did not include the “Ready Reserve Agreement to  Receive
Voluntary Separation Pay” as required to process his application.   On
26 October 2006, his application was  returned  without  action.   His
“Ready Reserve Agreement to Receive Voluntary Separation Pay” was sent
to and received by AFPC on the same day and his application  continued
through the required channels.  On 30 October  2006,  his  application
was disapproved based on the fact that the manning in his career field
was balanced, meaning there were no overages in his career field.   On
30 October 2006, he submitted an application for separation under  the
provision of Air Force Instruction (AFI) 36-3207  (completed  required
active service), requesting a date of separation (DOS) of 30  November
2006.  His application was again processed through  required  channels
and was eventually approved on 6  November  2006  with  a  DOS  of  30
November 2006.  On 4 December 2006, he received a gross VSP payment of
$82,855.20 less Federal Income  Taxes  of  $20,713.80  leaving  a  net
payment of $62,141.40.  On 27 December 2006, a debt was levied against
his military pay account for collection.  A review  of  the  debt  was
performed on 12 February 2007 that confirmed he was  not  entitled  to
VSP under the SPD code of  “FBK”.   The  audit  also  resulted  in  an
adjustment and subsequent refund of the taxes withheld  from  the  VSP
which were applied to the debt leaving a  remaining  debt  balance  of
$62,085.10 which is  currently  being  collected.   The  applicant  is
currently  assigned  to  the  Non-Obligated,  Non-Participating  Ready
Reserve Section (NNRPS).   He  has  over  six  years  of  satisfactory
Federal service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial.  DPPRS states MPF Memorandum (MPFM)  06-
50,  dated  26  July  2006,  stipulated  that  officers  in   selected
specialties and year groups with more than 6 and not more than exactly
12 years of service, as of their requested date  of  separation,  were
eligible for VSP.  Officers must have  served  at  least  5  years  of
continuous active service  immediately  preceding  their  actual  DOS.
Officers in selected  specialties  and  year  groups  must  have  been
identified as being in an overage  specialty  on  a  matrix  that  was
posted on the force shaping website.  If the  officers  specialty  was
identified as being either balanced or  short,  the  officer  was  not
eligible for VSP.  DPPRS notes the applicant’s recollection  that  the
matrix  showed  his  specialty  as  a  positive  quota  of  “3”.    As
applications processed under  the  FY07  Force  Shaping  Program  were
processed according to the date of receipt and coordinated through the
required channels, it is possible, at the  time  his  application  was
submitted, that the relevant matrix could have shown a positive quota.
 However, the matrix would not show if there were  three  applications
ahead of his in the process of being reviewed.  On  30  October  2006,
his request for separation was  disapproved  based  on  the  fact  his
career field was balanced and no additional losses could be  approved.
DPPRS states that based on the documentation on file,  the  separation
was consistent with the procedural and substantive requirements of the
separation instruction and guidance  of  the  FY07  AF  Force  Shaping
Program.  Therefore, DPPRS recommends denial concerning  the  changing
of his SPD code and defers to DFAS in regards to his receipt of VSP.

DPPPRS’s complete evaluation, with attachments, is at Exhibit B.

DFAS-JECC/DE  states  that  should  the  BCMR  concur   with   DPPRS’s
recommendation to deny, they would recommend he apply for a waiver  of
the indebtedness.

DFAS-JECC/DE’s complete evaluation, with attachment, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant  states  the  AFPC  advisory,  while  recommending   denial,
actually supports his request when viewed in light  of  the  available
evidence.  The AFPC memorandum contends, without  supporting  evidence
that the manning in his career  field  was  balanced  leading  to  the
denial of his attempt to voluntarily separate with VSP.  AFPC provided
as evidence a computer-generated form  with  a  hand-written  notation
that  stated  “Disapprove…matrix  did  not  support,”  indicating  the
decision was made on 30 October 2006 by  someone  whose  signature  is
illegible.  AFPC provided no copy of any iteration of the matrix  from
the relevant period of time.  He states AFPC’s  explanation  that  his
career field was balanced and  that  no  additional  losses  could  be
approved is both self-serving and wholly  speculative.   He  notes  no
evidence was offered to support their explanation.  All the  available
evidence continues to support his contention that his receipt  of  VSP
was proper and that DFAS’s subsequent collection action resulted  from
the erroneous entry of an incorrect SPD code on his DD Form  214.   He
contends the matrix in question did not show his career field as  over
manned or balanced until after he separated and he notes  the  current
version of the matrix indicates his career field is over manned.

Applicant’s complete response, with attachments, is at Exhibit E.

_________________________________________________________________

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.   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
offices of primary responsibility and adopt  their  rationale  as  the
basis for our conclusion that the applicant has not been the victim of
an error or injustice.  The applicant failed to establish  his  burden
of proof as he was not able to verify one way  or  the  other  exactly
what his matrix quota was at the time his application  was  processed.
It appears the system worked correctly in both instances in which  the
applicant applied for voluntary separation.  As suggested by  DFAS  in
their evaluation, we recommend he file a request for a waiver  of  his
indebtedness.  If he does not receive the relief  he  believes  he  is
entitled to, he may then reapply  to  this  Board  for  consideration.
Otherwise, 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 AFBCMR Docket Number BC-
2007-02163 in  Executive  Session  on  27  November  2007,  under  the
provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Debra K. Walker, Member
      Mr. Kurt R. LaFrance, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 July 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 23 July 07, w/atchs.
    Exhibit D.  Letter, DFAS-JECC/DE, dated 27 August 07, w/atch.
    Exhibit E.  Letter, SAF/MRBR, dated 31 August 07.
    Exhibit F.  Letter, Applicant, dated 9 September 2007,
                w/atch.




                                   THOMAS S. MARKIEWICZ
                                   Chair