RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-03726
INDEX CODE: 137.00
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
He be paid the interest he lost when he withdrew funds from an
investment account to participate in the Survivor Benefit Plan (SBP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
He elected to participate in the SBP as a result of fraudulent
information from the Defense Finance and Accounting Service (DFAS).
Therefore, he should be paid the lost interest on the money he
withdrew for the buy in premium of the SBP.
In support of his appeal, supportive statements, electronic messages
(e-mail), and other documents associated under the manner under
review.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The relevant facts pertaining to this application are contained in the
letters prepared by the appropriate offices of the Air Force, which
are at Exhibits B and H.
_________________________________________________________________
AIR FORCE EVALUATION:
DFAS-RPB-TQAL/CL indicates that in order to make an election into the
SBP open season, a payment of a buy in premium was required to cover
the period of time from the first date that an SBP election could have
been made. The payment of the buy in premium could be accomplished
through an immediate lump sum payment, monthly deduction, or a
combination of the two. The size of the buy in premium for the
applicant was in excess of the monthly deductions, so a lump sum
payment was required. Upon noting the size of the monthly deductions,
and the fact that the buy in premium did not reduce the taxable pay,
the applicant requested that his election be canceled and all amounts
be refunded. The election was canceled and a refund of the amounts
paid and withheld was made. As the premiums did not reduce the
taxable pay, they were reported as being received in 2006 and included
in the 1099-R for 2006. The applicant wanted those funds reported in
2007, when they were actually received. The 1099-R for 2006 was
corrected to comply with his request.
According to DFAS-RPB-TQAL/CL, there is no statute authorizing the
payment of interest on amounts refunded by the government. Although
the applicant may have been given incorrect or incomplete information,
there was no attempt to defraud him.
A complete copy of the DFAS-RPB-TQAL/CL, with attachment, is at
Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to applicant on 7 Dec
07 for review and response within 30 days (Exhibit C). By letter,
dated 6 Jan 07 [sic], the applicant’s spouse provided a statement on
his behalf for the Board’s consideration (Exhibit D).
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
In an email, dated 13 Mar 08, AFPC/DPSIAR indicated their belief that
whoever advised the applicant regarding the taxability of the buy in
premium discharged their duties correctly, lawfully, and in good faith
(Exhibit E.)
The Agency Legal Advisor recommends denial noting the applicant
enrolled during a period of open enrollment believing the SBP buy in
could be paid with pre-tax dollars. However, only the prospective SBP
premiums can be paid with pre-tax dollars. When the applicant
realized this, he was allowed to disenroll from the program and had
his money returned and given a corrected 1099-R. He asserted he
should be paid lost interest on the money withdrawn from an investment
account to pay the buy in because the conduct of the DFAS
representative with whom he was communicating constituted fraud.
The Legal Advisor indicates that he has reviewed the facts and
circumstances and believes there was no fraud in this case. Further,
in his view, there is no error or injustice that supports the
requested relief.
A complete copy of the Legal Advisor’s evaluation is at Exhibit H.
_________________________________________________________________
APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
A copy of the AFPC/DPSIAR e-mail was provided to the applicant on 27
Aug 08 for review and response within 30 days (Exhibit F). By letter,
dated 18 Sep 08, the applicant’s spouse provided a statement on his
behalf for the Board’s consideration (Exhibit G).
A copy of the Air Force evaluation was forwarded to applicant on 16
Oct 08 for review and response within 30 days. As of this date, no
response has been received by this office (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. The applicant's complete
submission was thoroughly reviewed and his contentions were duly
noted. However, we do not find the applicant’s assertions and the
documentation presented in support of his appeal sufficiently
persuasive to override the rationale provided by the AFRBA Legal
Advisor. No evidence has been presented which convinces us the
applicant elected to participate in the SBP based on fraudulent
information. Further, he has been allowed to disenroll from the
program and all monies returned to him. In view of the foregoing, and
in the absence of sufficient evidence to the contrary, we agree with
the recommendation of the Legal Advisor and adopt his rationale as the
basis for our decision that the applicant has failed to sustain his
burden of establishing he has suffered either an error or an
injustice. Accordingly, 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-
2007-03726 in Executive Session on 16 Dec 08, under the provisions of
AFI 36-2603:
Ms. Charlene M. Bradley, Panel Chair
Mr. Alan A. Blomgren, Member
Mr. Elwood C. Lewis III, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 18 Oct 07, w/atchs.
Exhibit B. Letter, DFAS-RPB-TQAL/CL, dated 4 Dec 07,
w/atch.
Exhibit C. Letter, SAF/MRBR, dated 7 Dec 07.
Exhibit D. Letter, applicant’s spouse, dated 6 Jan 07.
Exhibit E. E-mail, AFPC/DPSIAR, dated 13 Mar 08.
Exhibit F. Letter, AFBCMR, dated 27 Aug 08.
Exhibit G. Letter, applicant’s spouse, dated 18 Sep 08.
Exhibit H. Letter, Legal Advisor, dated 15 Oct 08.
Exhibit I. Letter, SAF/MRBR, dated 16 Oct 08.
CHARLENE M. BRADLEY
Panel Chair
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