RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  BC-2007-02812
		INDEX CODE: 110.00
XXXXXXX					COUNSEL:  NONE 
			  		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

She receive Reserve retired pay and benefits upon reaching the age of 60.  
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APPLICANT CONTENDS THAT:

Her severance pay is being recouped by the Department of Veterans Affairs (DVA); therefore, she should be eligible for the “gray area” retirement she earned effective 1 March 2002.  She became eligible for the “gray area” retirement effective 1 March 2002, which she is being denied.  She was hoping to obtain 20 years of active service for a retirement but after 18 years of service she became disabled and was separated with severance pay.  Her unit’s interpretation was that severance pay bought out her retirement benefits.  She receives DVA disability benefits; however, her severance pay is being recouped by the DVA.  Since she is paying back the money, she believes she should be eligible for the “gray area” retirement she earned effective 1 March 2002.

In support of her request, the applicant submitted a memorandum from HQ ARPC/DPPR and special order number P-067.  

Her complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 25 October 1979, the applicant enlisted in the Regular Air Force.  

She completed the service requirements for Reserve retired pay under the provision of Title 10, United States Code (U.S.C.), in 2002 and was issued a Notification of Eligibility for Retired Pay at age 60 letter on 4 June 2002.  According to Title 10, once a person has completed the years of service required for eligibility for retired pay, the person’s eligibility for retired pay may not be denied or revoked on the basis of an error, miscalculation, misinformation, or administrative determination of the years of service performed unless it resulted directly from the fraud or misrepresentation of the person.  

A Medical Evaluation Board (MEB) convened and referred her case to an Informal Physical Evaluation Board (IPEB).  The IPEB found her unfit for further military service and recommended a combined compensable rating of 10%.  Because the applicant had over 20 years of satisfactory service she had the option of electing to be discharged with severance pay or to be placed on the Reserve Retired list awaiting pay at age 60.  She elected discharge with severance pay.

On 6 March 2006, she was discharged in the grade of technical sergeant for Medical Disqualification with severance pay.

She served a total of 18 years and 3 days on active duty.  

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AIR FORCE EVALUATION:

HQ ARPC/DPP recommends denial.  DPP states the applicant was medically disqualified for military service in 2006.  In accordance with Title 10, U.S.C, Sections 1206 and 1209, the applicant could either be discharged with entitlements to disability severance pay, or if eligible, request transfer to the Inactive Status List Reserve Section (ISLRS) and apply for pay at age 60.  Since the applicant had over 20 years of satisfactory service, she was eligible to transfer to ISLRS and apply for Reserve retired pay at age 60; however, she elected discharge with severance pay.  DPP cannot comment on the DVA’s procedures for recouping disability severance pay from the applicant’s DVA disability compensation.  DPP can only confirm that DVA disability and Reserve retired pay are separate programs and are governed by separate laws.  The issue of the DVA recouping the disability severance pay from her DVA disability compensation does not change the fact that the applicant chose to accept disability severance pay in lieu of Reserve retired pay.  The applicant had the option of taking disability severance pay or waiting until age 60 to apply for Reserve retired pay.  The applicant elected and received disability severance pay under the provision of Title 10, U.S.C., Section 1206.  Since there is no provision of law that allows a member to accept both disability severance pay and Reserve retired pay, she is not eligible to apply for and receive Reserve retired pay under the provision of Title 10, U.S.C., Section 12731.

The complete DPP evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded stating it is her understanding she is being denied Guard benefits because she chose to accept severance pay after she incurred a disability while on active service.  She did not choose to separate from service but was forced out.  At the time of her separation, she was not offered the option of waiting until age 60 to apply for Reserve retired pay.  According to the personnel advisors, she would be paid severance pay due to disability from active duty.  However she had already earned a Guard retirement.  After she started receiving DVA disability, the DVA notified her they would be recouping the entire disability severance.  This brings her back to the original question, if she has to repay the disability severance in its entirely to the DVA, then why would awarding her the retirement she earned be considered double dipping.  Had she been able to finish two more years and receive an active retirement, she would have also been eligible to receive VA disability.  She has written her senator and the Secretary of the Air Force on this same issue.  All she has received was a phone call apologizing for the oversight and asking her to return the money then she could receive a Reserve retirement.  She was paying her mortgage and bills with the money.  As a 45 year old woman crippled with arthritis after serving years in the Security Forces, she had to go through a tremendous learning curve in civilian life.  She is certainly not eligible to work in a compatible civilian field.  She believes she was being forced/bought out of her active contract.  It was her understanding based on counseling she received she should also be eligible for Reserve retirement.  It was not until months later, someone called asking her to return the severance she was paying bills with in order to receive the retirement she had earned four years earlier.  She understands she is probably one of the few people these circumstances would apply to.  

The applicant's complete response, with attachments, is at Exhibit D.

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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 an error or injustice.  The applicant is requesting her election for discharge with severance pay be changed to show that she instead elected placement on the Reserve retired list, eligible to receive retired pay upon reaching the age of 60.  It appears that the basis for her request is driven by the DVA's offset of the severance pay she received from her DVA disability compensation payments.  However, we are compelled to note that favorable consideration of her request, would require recoupment of the severance pay as well, leaving her in the same predicament she now finds herself in.  Notwithstanding the above, we find no error in this case, and after careful consideration of the evidence presented, are not persuaded that the DVA's recoupment of her severance pay, as required by law, constitutes an injustice.  Further, we do not find her uncorroborated assertion of miscounseling sufficiently persuasive to make a determination that an injustice exists in this case.  Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. 

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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 AFBCMR Docket Number BC-2007-02812 in Executive Session on 6 February 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 August 2007, w/atchs.
    Exhibit B.  Letter, ARPC/DPP, undated.
    Exhibit C.  Letter, SAF/MRBR, dated 7 December 2007.
    Exhibit D.  Letter, Applicant, dated 15 December 2007.