RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 				DOCKET NUMBER: BC-2015-04225

XXXXXXXXXX					COUNSEL:  NONE

							HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

The recoupment of her Voluntary Separation Pay (VSP) be waived.

APPLICANT CONTENDS THAT:

The decision to recoup her VSP is unjust and the decision should be overturned based on an agreement she signed in April 2014, which protected her VSP from recoupment.  She is aware on 22 November 2008, the Secretary of the Air Force (SecAF) revoked the 2007 memorandum which waived the requirement to recoup VSP from DVA disability compensation in October 2007.  However, AFPC provided her this agreement which still included language waiving the requirement to recoup VSP.  She made the decision to separate based on the IRR agreement she signed in April 2014.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 28 November 2001.

In a memorandum dated 17 October 2007, the SecAF informed the Department of Veterans Affairs (DVA) the requirement to recoup VSP from disability compensation benefits awarded by the DVA was waived.

In a memorandum dated 22 November 2008, the SecAF revoked the memorandum dated 17 October 2007.  The memorandum further stated the SecAF may waive the requirement to repay VSP when an Airman later earns military retirement pay or when an Airman is awarded disability compensation by the DVA.  Waivers are approved if the SecAF determines that recovery of the VSP would be against equity and good conscience and would be contrary to the best interests of the United States.

On 31 August 2014, the applicant was furnished an honorable discharge, and was credited with 12 years, 9 months, and 3 days of active service.  Her narrative reason for separation is “Force Shaping-VSP.”

According to Individual Ready Reserve (IRR) Agreement Conditional for Enlisted Separation Pay, provided by the applicant [signed on 21 April 2014], paragraph 4a states in part: “(SUSPENDED) Per SecAF memorandum, dated 17 Oct 2007, the requirement to recoup VSP from disability compensation benefits awarded by the DVA is waived.”

According to a myPers Total Force Service Center (TFSC) chat session, created on 7 April 2015, the TFSC advised the applicant that the version of the Personnel Services Delivery Memorandums (PSDM) she was provided on 11 April 2014 is the correct version and suspended [revoked] previous versions.  One of the corrections was to remove the DVA compensation waiver clause from the IRR agreement that was erroneously inserted in the earlier edition of the PSDM.

According to VA Form 21-4138, Statement in Support of Claim, the applicant indicated the DVA is erroneously withholding her separation pay.

On 27 April 2015, the applicant submitted a DD Form 2789, Waiver of Indebtedness Application.

In a letter dated 14 September 2015, the Air Force Review Boards Agency, on behalf of the SecAF, determined the decision to require the applicant to repay the VSP was not against equity and good conscience or contrary to the best interests of the United States.  Accordingly, her request for a waiver of recoupment of the VSP was denied.

The applicant is currently serving in an inactive status with the Air Force Reserve.

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DP2STM recommends denial indicating there is no evidence of an error or an injustice.  The applicant was subject to separation pay recoupment based on becoming eligible to receive disability compensation from the DVA.  PSDM 14-07, FY14 Enlisted Voluntary Separation Pay (VSP) Program, dated 23 January 2014 (amended 11 April 2014), established the criteria for applying for VSP.  The applicant contends that she signed an IRR agreement on 21 April 2014, and that this agreement indicated the requirement for VSP recoupment was suspended.  There is no record of this IRR agreement in the applicant’s record, other than the one she provided with her request to the Board.  Nor is there a record in the Case Management System of sending this document to the applicant for signature.  Furthermore, the PSDM had been amended on 11 April 2014, and the IRR agreement contained therein did not waive recoupment of separation pay.  Therefore, any IRR agreement provided to the applicant on or after 11 April 2014, would not have waived recoupment.

A complete copy of the AFPC/DP2STM evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In January 2014 she signed the IRR agreement, which included the DVA Disability recoupment statement (PSDM 14-07).  On 21 April 2014, she saw an update to PSDM 14-07, which included the IRR agreement that referenced the requirement that recoupment of VSP from disability compensation benefits was waived [sic].  She printed this document, signed, and sent it via email to her AFPC separations office.  In June she took several weeks of leave.  According to AFPC, during this time another change was made to PSDM 14-07.  Following her leave she returned for two days to out-process, then proceeded to take terminal leave until her separation date of 31 August 2014.  She was never informed of any updates when she physically signed out of the base at her last duty station.  In January 2015, she received notification from the DVA of her disability rating and recoupment of her separation pay was initiated.  Many administrative errors were made with the conflicting PSDM updates.  Had she been aware she may have made a different choice.

ADDITIONAL AIR FORCE EVALUATION:

SAF/MRBB recommends denial indicating there is no evidence of an error or an injustice.  Prior to applying to the Board, the applicant filed a request for waiver of repayment of the debt with SAF/MRB.  SAF/MRB referred the matter to the SAF Remissions Board (SAFRB) for a recommendation and SAFRB recommended SAP/MRB deny the waiver request.  On 14 September 2015, SAF/MRB issued a decision denying the applicant's request for waiver of her $50,639.17 debt which resulted from the payment of VSP in August 2014.  The applicant did not appeal the SAF/MRB decision to deny her waiver request.  In addition, the applicant has not provided any newly discovered evidence which would affect a change in the original recommendation to deny her request for a waiver of repayment of the VSP she received.

A complete copy of the SAF/MRBB evaluation, with attachments is at Exhibit F.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 5 January 2017, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit G).  As of this date, no response has been received by this office.

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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of SAF/MRBB and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  While the applicant argues that the IRR agreement she signed on 21 April 2014 waived the recoupment of disability compensation issued by the SecAF in 2007, she is in agreement the SecAF revoked this memorandum in 2008.  As such, the IRR agreement the applicant signed includes the term “Suspended” preceding the statement waiving recoupment of VSP from DVA benefits.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.

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-2015-04225 in Executive Session on 13 September 2016 and 27 February 2017, under the provisions of AFI 36-2603:

 , Panel Chair
 , Member
 , Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04225 was considered:

Exhibit A.  DD Form 149, dated 5 October 2015, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, AFPC/DP2STM, dated 5 April 2016.
Exhibit D.  Letter, AFBCMR, dated 8 April 2016.
Exhibit E.  Letter, Applicant, dated 1 May 2016, w/atchs.
Exhibit F.  Memorandum, SAF/MRBB, dated 4 January 2017, 
  w/atchs
Exhibit G.  Letter, AFBCMR, dated 5 January 2017.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter pertaining to AFBCMR Docket Number BC-2015-04225.