RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-01790
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. His DD Form 2058, State of Legal Residence Certificate, be
amended to reflect New York for the tax years 2008, 2009 and
2010.
2. His W-2s for the tax years 2008, 2009 and 2010, be amended
to reflect 0 for state wages.
______________________________________________________________
APPLICANT CONTENDS THAT:
When he came onto active duty in August 2008, during his
Commissioned Officer Training (COT) at Maxwell AFB, he was
provided finance processing paperwork. He was also given a
briefing regarding the options of declaring a state of legal
residence for tax purposes. At that time he elected to declare
the state of Alabama since he would be stationed there on his
initial assignment. In January 2011, he became aware of the tax
exemption for New York residents serving in the military and he
desired to amend his record. He was advised by his accountant to
contact the Alabama Department of Revenue that advised him that
they would initiate a case with DFAS on his behalf; he later
found out that DFAS did not have the authority to amend his
records.
In support of his request, the applicant submits a personal
statement, a copy of his drivers license, New York State Voters
Registration, Servicemembers Civil Relief Act-excerpt, Alabama
Code-excerpt, and email communiqué.
The applicant's complete submission, with attachments, is at
Exhibit A.
______________________________________________________________
STATEMENT OF FACTS:
The remaining relevant facts pertaining to this application,
extracted from the applicants military records, are contained in
the letter prepared by the appropriate office of the Air Force at
Exhibit B.
______________________________________________________________
AIR FORCE EVALUATION:
DFAS-IN recommends denial. DFAS-IN states upon entry into the
Air Force on 22 August 2008, the applicant signed a DD Form
2058 stating legal residence of Alabama. This required the Air
Force to report wages and deduct taxes as required for that
state. In January, the applicant was made aware of the fact that
had he reported the State of New York as his state of legal
residency, which was in fact true, there would have been no tax
liability since he was performing duties out of state.
Per the Department of Defense Finance Management Regulation (DOD
FMR) Volume 7A Chapter 44/440106 State and Local Taxes: The
state in which a member claims legal residence may tax
compensation and other income regardless of the members
location. Compensation for military service, however, is not
taxable by any state, territory, possession, political
subdivision, or district that is not the members legal
residence.
DoD Financial Management Regulation Volume 7A, Chapter 44, July
2009, 44-9B, Legal Residence: Each member must designate a legal
residence and report any changes of legal residence. A members
legal residence does not change because of change of permanent
station. Legal residence at the time of entry into the Armed
Forces remains the same until changed by the member.
Notification of legal residence or change of legal residence must
be accomplished by the member using a DD Form 2058, State of
Legal Residence Certificate.
The applicant filed a DD Form 2058 with the designated legal
residence of Alabama. There is no error or injustice in this
case.
The DFAS complete evaluation is at Exhibit B.
______________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 28 October 2011, a copy of the Air Force evaluation was
forwarded to the applicant for review and comment within 30 days
(Exhibit C). As of this date, this office has received no
response.
_________________________________________________________________
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 an error or an injustice that would
warrant action by the Board. We have been advised by the Defense
Finance and Accounting Service - Indianapolis (DFAS-IN) that the
relief the applicant seeks is not under the Boards purview. The
applicant may wish to determine what relief may exist under
federal and state internal revenue authorities. Therefore, there
is no basis for the Board to take action on the applicants
request.
______________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of an error or injustice; the
application was denied without a personal appearance; and 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-2011-01790 in Executive Session on 2 February 2012,
under the provisions of AFI 36-2603:
The following documentary evidence pertaining to AFBCMR Docket
Number BC-2011-01790 was considered:
Exhibit A. DD Form 149, dated 29 April 2011, w/atchs.
Exhibit B. Letter, DFAS-IN, not dated.
Exhibit C. Letter, SAF/MRBR, dated 28 October 2011.
Panel Chair
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