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