RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04631 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: The recoupment of the $47,742.00 severance payment he received in 1993 be waived. ________________________________________________________________ APPLICANT CONTENDS THAT: He was not provided the opportunity to make the election to transfer into the Inactive Status List Reserve Section (ISLRS) and was therefore discharged from the Temporary Disability Retired List (TDRL) with severance pay. It has been 19 years since he received severance pay, which has been spent. He was not made aware of the error until 2010. In support of his request, the applicant provides copies of electronic communiqués, AFBCMR BC-2011-00291 documents, Special Order number ACD-BCMR-001, a fax from his congressman and various other documents associated with this request. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: In 2009/2010, the applicant submitted a DD Form 149, Application for Correction of Military Records, requesting that his removal from the TDRL and his discharge with severance pay be set aside and that his records reflect that he elected to be placed on the ISLRS to accept 20 year reserve retirement at age 60. On 29 March 2010, AFPC/DPSD prepared an advisory recommending approval of the applicant’s request to elect transfer into the ISLRS effective 10 July 1993 and also recommended recoupment of his $47,742.00 disability severance pay. On 26 August 2011, the AFBCMR granted the applicant’s request that he be removed from the TDRL and his discharge with severance pay effective, 10 July 1993, be set aside and reflect that he elected to be placed on the ISLRS to accept his 20 year Reserve retirement at age 60. It was also directed that his $47,742.00 disability severance pay be recouped. ________________________________________________________________ AIR FORCE EVALUATION: DFAS-JBJE/CL recommends denial. JBJE/CL states that on 29 January 1992, the applicant was released from active service and placed on the TDRL. On 30 June 1993, he was removed from the TDRL effective 10 July 1993, with entitlement to disability severance pay. Air National Guard members who have twenty years of satisfactory service and receive a recommendation of discharge with severance pay are afforded the opportunity to either elect transfer into the ISLRS and retire at age 60 with a reserve retirement, or accept the severance pay. The Board reviewed the member's personnel record and it appeared that he was not provided the opportunity to make the election to transfer into the ISLRS and was therefore discharged from the TDRL with severance pay. His records were changed to show that on 10 July 1993, he exercised his option under Title 10, U.S.C. 12732 to transfer to the ISLRS in lieu of being entitled to receive disability severance pay. In accordance with Title 10, U.S.C. § 1174(h)(l) and §1174(h)(2), a member who has received separation pay under this section, or separation pay, severance pay, or readjustment pay under any other provision of law, based on service in the armed forces, and who later qualifies for retired or retainer pay under this title or Title 14 shall have deducted from each payment of such retired or retainer pay an amount, in such schedule of monthly installments as the Secretary of Defense shall specify, taking into account the financial ability of the member to pay and avoiding the imposition of undue financial hardship on the member and member's dependents, until the total amount deducted is equal to the amount of separation pay, severance pay, and readjustment pay so paid. The severance payment that he was entitled to receive was legal and proper when payment was made. Considering the law and that the payment, when made, was legal and proper, JBJE/CL recommends that the request for waiver of the recoupment of his severance pay not be approved. The complete JBJE/CL evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: On 5 November 2012, a copy of the DFAS evaluation was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After thoroughly reviewing the evidence of record and the applicant’s complete submission, we are not persuaded that relief of his indebtedness to the government is warranted. Therefore, we agree with the opinion and recommendation of DFAS and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Absent persuasive evidence that he was denied rights to which he was entitled, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ 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. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 2 July 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-04631: Exhibit A. DD Form 149, dated 14 May 2012, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, DFAS-JBJE/CL, dated 25 October 2012. Exhibit D. Letter, SAF/MRBR, dated 5 November 2012.