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-2’s 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 driver’s license, New York State Voter’s 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 applicant’s 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 member’s location. Compensation for military service, however, is not taxable by any state, territory, possession, political subdivision, or district that is not the member’s 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 member’s 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 Board’s 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 applicant’s 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.