RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00395
		INDEX NUMBER:  128.00
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

He be paid all retirement pay owed to him that is beyond the six-year statute of limitation for filing a claim contained in United States Code, Title 31, Section 3702.

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APPLICANT CONTENDS THAT:

His military retirement pay was sent to the wrong financial institution due to an error made by the Defense Finance and Accounting Service (DFAS) US Military Retired Pay section.  He was never notified of the error.

The applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant was placed on the retired list effective 7 Sep 94 in the grade of technical sergeant (E-6) based on having completed 20 years of satisfactory service as a member of the Air National Guard and reaching age 60.

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AIR FORCE EVALUATION:

The DFAS US Military Retired Pay section states that no action can be taken by them to pay the applicant the barred pay.  Title 31, Section 3702, USC limits them to paying only six years back from the date the applicant filed a claim for his pay.

The applicant was placed on the retired list effective 7 Sep 94.  His retired pay account was established with an incorrect check mailing address.  Upon return of the payments, his account was placed in a suspended status.  In December 2003, the applicant made claim for the unpaid retired pay.  Although the problem was caused by a government error, the applicant waited until 2003 to note that he was not receiving his retired pay.  For the period Dec 97 through Nov 03, he was paid $32,328.00 in gross monthly retired pay.  He would have been due net pay of $15,340.00 for the period Sep 94 through Nov 97.  They point out that in Nov 95, they were served with a tax levy against the applicant in the amount of $27,286.89, which would have been processed against his account had it been active.  He was further served with debts totaling $1358.28, which also would have been collected.  

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation, applicant states that if DFAS had investigated further, they would have realized that in regards to the debts they reference he made an agreement with the IRS for reimbursement, which has been paid.  He also indicates that for the record he is enclosing a copy of a letter from the Navy Exchange showing that the issue of the debt to them had been resolved.  He is also expecting a letter from the IRS.

Since the Government made the error, he is asking to have all funds owed to him paid.

The applicant’s complete response is at Exhibit E.

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REQUEST FOR ADDITIONAL INFORMATION:

Since the documents referenced by the applicant regarding his debt to the IRS and Navy Exchange were not included with his response to the Air Force evaluation, he was asked to provide copies of these documents to the Board (Exhibit F).

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ADDITIONAL INFORMATION:

Pursuant to the Board’s request, the applicant provided copies of the documents showing that he had settled his debt to the IRS and Navy Exchange.  The applicant also provided additional response to the original Air Force evaluation.  He states the assertion by DFAS that he was to contact their office regarding his retired pay is a complete untruth and he did not contact them because he did not know they were sending his pay to the wrong bank.  He did not discover the error until Oct 03.

The applicant’s complete response, with attachments, is at Exhibit G.

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REQUEST FOR ADDITIONAL INFORMATION:

Since the documents provided by the applicant regarding the IRS lien against his pay did not indicate if it was paid in full, additional information was requested regarding the payment of the lien (Exhibit H).

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ADDITIONAL INFORMATION:

The applicant responded to the Board’s request for additional information by providing copies of his tax returns for the years indicated on the IRS lien.  The documents did not resolve the Board’s questions regarding whether the entire amount of      $27,286.89 was paid.

The applicant’s response is at Exhibit I.

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we are not persuaded that the applicant has been the victim of an error or injustice warranting the relief requested.  While we note that DFAS has verified an error was made by directing the applicant’s retired pay to the wrong address, the applicant has not presented any evidence of due diligence on his part to get the error corrected in a reasonable amount of time.  The Board simply does not find it reasonable the applicant was unaware for a period of almost nine years he was not being paid his retirement pay.  Since DFAS is prohibited from paying the applicant the balance of his retired pay beyond six years by statute, we believe that it is incumbent on the applicant to provide the Board with sufficient justification to grant him the relief in spite of the limiting effects of the statute.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered Docket Number BC-2004-00395 in Executive Session on 17 August 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Jan 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, DFAS, dated 12 Mar 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Mar 04.
    Exhibit E.  Letter, Applicant, dated 18 Apr 04.
    Exhibit F.  Letter, AFBCMR, dated 13 Jul 04.
    Exhibit G.  Letter, Applicant, dated 15 Jul 04, w/atchs.
    Exhibit H.  Letter, AFBCMR dated 1 Oct 04.
    Exhibit I.  Letter, Applicant, dated 8 Oct 04, w/atchs.

                                   Panel Chair