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
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