RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03707 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His retired pay be calculated under the Final Basic Pay retirement plan rather than the High-36 retirement pay plan and his debt be removed. ________________________________________________________________ APPLICANT CONTENDS THAT: Based on the erroneous computation by Defense Finance and Accounting Service (DFAS), his retired pay should not be calculated under the High-36 retired pay plan thus removing the debt. DFAS initially calculated his retired pay using the Final Basic Pay retired pay plan and later discovered their calculations were in error and recalculated his retired pay under the High-36 retired pay plan, resulting in a significant recoupment of over $15,000.00, including interest. In addition, in trying to correct his retired pay, DFAS made further errors in calculating the tax implications of the recoupment. Because of the errors and the financial hardship caused by recoupment, the applicant wants his retired pay to be based on Final Basic Pay computations rather than under the provisions of the High-36 retired pay plan. Although DFAS General Counsel has suggested the applicant file for Waiver of Indebtedness, the applicant wants to be returned to the Final Basic Pay retired pay plan. In support of his appeal, the applicant provides a personal statement of the circumstances surrounding his retirement pay; copies of correspondence with DFAS; pay documents; letters of indebtedness, and other supporting documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant was permanently retired for disability effective 3 Jul 08, with a disability rating of 60 percent. He was credited with 9 years, 11 months, and 1 day of active service for retirement. On 14 Sep 09, the AFBCMR corrected the applicant’s record to reflect compensable disability rating at retirement was 70 percent rather than 60 percent (AFBCMR BC-2009-00723). DFAS administratively corrected the applicant’s retired pay computation to reflect a retired pay computation based on the High 36 retired pay rather than Final Basic Pay, in accordance with applicable law and policy. ________________________________________________________________ THE AIR FORCE EVALUATION: DFAS recommends denial, noting that while the errors that occurred are regrettable, the retired pay as computed by the high average method is correct. Unless it can be established that the applicant actually entered the Service prior to 8 Sep 80, no correction is warranted. In addition, they note based on the record furnished at the time the applicant was retired, he initially entered the Service on 21 May 98. In accordance with the provisions of tile 10, United States Code (USC), Section 1407, as he initially entered the Service after 8 Sep 80, he is not subject to the final basic pay computation. He is subject to the high average computation method. AFI 36-3262, Rule 2 of Table 5-1 refers to Note 2, which provides in pertinent part, the following "… For members who entered military service prior to 8 Sep 80, compute according to the current monthly basic pay rate. For members who entered military service on or after 8 Sep 80, compute from a monthly retired pay base (RPB). RPB is an average of the member's highest 36 months of active duty pay …. " The complete DFAS evaluation is at Exhibit C. AFPC/DPSOR recommends denial, stating, in part, there is no evidence in the applicant's military record or any evidence he provided to show he has a Date Initially Entered Uniformed Service (DIEUS) earlier than 8 Sep 80 which would entitle him to the Final Basic Pay retired pay plan (10 USC § 1406). DFAS notes that when a member is retired for permanent disability under 10 USC § 1201, either the active service for retirement or the percentage disability, whichever is higher (not to exceed 75 percent) is used as the percentage applied to the member's retired pay plan. Members who have a Date Initially Entered Uniformed Service (DIEUS) earlier than 8 Sep 80 are under the Final Basic Pay retired pay plan (10 USC §1406). Members who have a DIEUS on or after 8 Sep 80 are under the High-36 retired pay plan. A DIEUS is the date a member first commits to an obligation for military service, such as a Delayed Enlistment Program contract, an AFROTC scholarship contract, or enters a service academy. The applicant's DIEUS is 21 May 98 based upon having executed the Oath of Office on that date. In order to be eligible for calculation of his retired pay under 10 USC § 1406, he would have to show evidence of having executed a military contract of some sort more than 17 years prior to the 21 May 98 Oath of Office. DFAS has correctly ascertained that his current retired pay is based on High-36 (10 USC §1407) due to his DIEUS of 21 May 98 and that the applicant's retired pay is subject to recoupment based upon the earlier overpayment. The applicant's avenue for relief is to submit a Waiver of Indebtedness, not to request that the AFBCMR waive federal law. Initially, DFAS erroneously calculated his retired pay at 60 percent times his Final Basic Pay. Later, his pay was recalculated at 70 percent times Final Basic Pay. DFAS ultimately detected their error, notified the applicant of the error and informed him of the recoupment involved. DFAS General Counsel informed him he could request a Waiver of Indebtedness through DFAS. The complete AFPC/DPSOR evaluation, with attachments, is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant states neither of these advisories recognizes the inequity and the injustice that has occurred because of the numerous errors that DFAS has made in recalculating his retired pay. As previously stated, it was his understanding prior to his retirement that his retired pay would be based on his current base pay. That is what the Air Force regulation provided, that is what he was advised, and that is what DFAS on two separate occasions calculated his retirement pay to be. Moreover, while the 25 Jul 08 letter does indicate that the average of the 36 highest monthly basic pay formula would be utilized, the amount of his monthly retired pay was calculated to be $3,479.00, as derived from the active duty base pay of $5,799.00. He has been unable to attain employment because of his physical disability; his financial future was based on the information he was provided at the time of his retirement, and DFAS's actions in their first and second calculations. As stated in his application, DFAS made numerous other errors in dealing with his account beyond these two basic calculations. It was almost like a circus with one letter arriving correcting errors followed by another letter the next day or so correcting the errors in the first letter followed by another letter correcting all those errors. He has not been advised by DFAS how or by whom these initial repeated errors were made. It is obvious that there is no computer crosscheck whereby DFAS could verify whether or not people are being paid too much or too little. Apparently, DFAS is not concerned about the consequences of their errors. These consequences fall on the servicemember to resolve or to live with. He still does not know for a fact that DFAS correctly adjudicated his current pay, the previous pay or the indebtedness that they initially claimed he owed them. It is very difficult to have any sort of long-term plans knowing the ease with which DFAS can make errors and ignore them. It is his understanding that many members of the AFBCMR staff and, probably voting members on the Board get checks monthly from DFAS. How many of you can be confident if your accounts are being handled in an appropriate way or in the manner his account was handled, with numerous compounded errors? It remains a matter of justice and equity that he should be allowed to rely on the information given to him at the time of his retirement on which he planned his future. He did not ask for his service to be curtailed. He intended to continue service in the Air Force for as long as he could, but his physical conditions required a change in the status as well as his life. He understands that DFAS cannot waive the statute; however, it is his understanding that the BCMR can make changes to his military record as a matter of equity; fairness and justice to overcome these compound errors, which have so severely impacted his financial stability. The applicant’s complete response, with attachments, is at Exhibit F. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has not exhausted all remedies provided by existing law or regulations. The applicant has been advised to submit a waiver of indebtedness to DFAS to petition the relief of the debt. The applicant should submit a DD Form 2789, Waiver/Remission of Indebtedness Application, to DFAS as previously advised. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. The Board notes the applicant’s retired pay was erroneously computed under final basic pay rather than the High-36 retired pay plan. However, since the applicant entered active duty after 8 September 1980, pursuant to statute, his retired pay must be computed under the provisions of 10 USC 1407 (High-36 retired pay plan). Although the applicant implores the Board to correct his record as a matter of equity, we are precluded from correcting a military record contrary to provisions of law. While the errors made in computing the applicant’s retired pay are regrettable, his only recourse at this time is to seek waiver of the debt through appropriate channels. If his waiver request is not approved, he may then apply to this Board for consideration of waiving the debt. Therefore, in the absence of evidence to the contrary, we find no 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material 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-2011-03707 in Executive Session on 12 June 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 13 Sep 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, DFAS-RBP-JBJE/CL, dated 30 Sep 11. Exhibit D. Letter, AFPC/DPSOR, dated 3 Nov 11, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 18 Nov 11. Exhibit F. Letter, Applicant, dated 15 Dec 11, w/atchs.