RECORD OF PROCEEDINGS 
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2004-02431
		INDEX NUMBER: 100.00

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  7 FEB 06

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APPLICANT REQUESTS THAT:

The entire garnishment process that has taken place over the past three years be waived, with reimbursement of all garnishments he has paid to date, and he be retired in the grade of lieutenant colonel.

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THE APPLICANT CONTENDS THAT:

Despite his selection for continuation on active duty, he was erroneously retired in the Military Personnel Data System (MilPDS) and never fully incorporated back into the finance and personnel data bases.

The applicant states that action was taken to change his status in the personnel system from retired to active duty; however, the Air Force Personnel Center (AFPC) switched to the new MilPDS personnel data base and no one knew how to work the new data base.  As a result, he was no longer in the active duty finance data base, but rather the retirement data base.  This resulted in recoupment of both active duty and retired pay; production of an inaccurate W-2, which caused problems with the Internal Revenue Service (IRS); and the 14 months he was removed from the active duty data base excluded him from promotion opportunities.  Further, the involuntary collection action was taken without his consent or a status specifically authorizing the collection, withholding of subsistence allowances to pay debt, and withholding of over 25% of base pay.

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

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STATEMENT OF FACTS:

The applicant was considered and not selected for promotion to the grade of lieutenant colonel by Calendar Years 1999A, 1999B, and 2000A (CY99A, CY99B, & CY00A) Lieutenant Colonel Central Selection Boards.  He was offered continuation by the CY99B and CY00A boards.  On 11 May 2001, he accepted continuation and his Date of Separation (DOS) was established as 28 February 2007 (24 years of active commissioned service).  However, he was placed on the retired list effective 1 June 2001 and received retired pay through November 2001.  On 1 December 2001, he began receiving a normal active duty paycheck.  Based on his new DOS of 28 February 2007, he was considered by the CY01B Lieutenant Colonel Central Selection Board which convened on 5 November 2001, and was not selected.  On 31 January 2002, he applied for a 1 August 2002 retirement.  He was released from active duty on 31 July 2002 and retired effective 1 August 2002.

On 11 April 2005, DFAS advised him that his debt of $7,105.82 was reduced to $3,280.91, due to a credit for Basic Allowance for Housing (BAH), refunds for Social Security and Medicare withholdings, and a refund of Servicemen Group Life Insurance (SGLI) premiums.  DFAS further advised him the remaining debt was due to an over-collection of 2002 federal income tax withholdings, and that since it occurred in a prior year, they were unable to retrieve the funds from the Internal Revenue Service (IRS).  Based on payments received totaling $7,196.43 over the period June 2004 through April 2005, he will receive a refund in the amount of $3,914.95.

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AIR FORCE EVALUATIONS:

AFPC/DPPRRP states, in part, that Special Order AC-010457, issued on 26 March 2002, released the applicant from active duty on 31 July 2002 and retired him effective 1 August 2002.  The applicant has had numerous pay problems because his original mandatory retirement date of 1 June 2001 consummated, along with transactions to Defense Finance and Accounting System (DFAS) to start his retired pay.  Although he was selected for continuation on active duty, the Retirements Processing Section at AFPC was not notified until after the 1 June 2001 retirement had consummated in MilPDS.  Because the retirement processed, he began to receive retired pay. When the manifest error processed to place him back on the active file, DFAS was obligated to recoup his retired pay; however, at the same time, there was a delay in restarting his active duty pay.

The AFPC/DPPRRP evaluation is at Exhibit C.

DFAS-RPB-TQAL/CL recommends the application be denied and states, in part, that since both the active duty and retired pay systems reflect the proper retirement date of 1 August 2002, the collection action is proper.

The DFAS-RPB-TQAL/CL evaluation is at Exhibit D.

AFPC/DPPPO recommends the application be denied and states, in part, that the applicant met all lieutenant colonel selection boards he was eligible for and the problems incurred with his DOS did not affect his promotion eligibility.

The AFPC/DPPPO evaluation is at Exhibit E.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

While AFPC contends he was an active duty member until his 1 August 2002 retirement, as late as February 2002, the personnel and pay data systems showed him as being retired.  The Air Force should be required to defend its garnishments by addressing his claims of inaccuracy, over garnishment, and regulatory violation.  Over the past three years, he has developed hypertension due to the stress of this situation.  The Air Force refused to provide him active duty treatment for the condition because he was carried as a non-Prime, TriCare retiree, rather than an active duty member.

Applicant’s complete response is at Exhibit G.

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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 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 find no basis upon which to recommend favorable consideration of his requests.  The applicant was considered and not selected for promotion to the grade of lieutenant colonel by the CY99A, CY99B, & CY00A Lieutenant Colonel Central Selection Boards.  He was offered continuation by the CY99B and CY00A boards and initially declined, instead requesting to retire on 1 June 2001.  However, on 11 May 2001, approximately three weeks prior to his projected retirement, he accepted continuation and his DOS was established as 28 February 2007 (24 years of active commissioned service).  However, since the Retirements Processing Section was not notified until after the 1 June 2001 retirement had consummated in the MilPDS, he was placed on the retired list effective 1 June 2001 and received retired pay through November 2001.  Based on his new DOS of 28 February 2007, he was considered for promotion by the CY01B Lieutenant Colonel Central Selection Board which convened on 5 November 2001, and was not selected.  While the problems he experienced with his retirement date are unfortunate, he bears some responsibility for this, and should have anticipated the negative consequences of waiting three weeks prior to his approved retirement date to decide that he desired to continue on active duty.  Regardless, since dual compensation is prohibited by law, the overpayment was garnished accordingly.  He has received all pay to which entitled and his retirement of 1 August 2002 is correct.  Further, on 11 April 2005, DFAS reduced his debt of $7,105.82 by $3,280.91, due to a credit for BAH, refunds for Social Security and Medicare withholdings, and a refund of Servicemen Group Life Insurance (SGLI) premiums.  The remaining debt is due to an over-collection of 2002 federal income tax withholdings, to which he may appeal to the Internal Revenue Service (IRS) for overpayment of taxes.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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 Docket Number BC-2004-02431 in Executive Session on 10 May 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Jul 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRRP, dated 23 Aug 04.
    Exhibit D.  Letter, DFAS-RPB-TQAL/CL, dated 7 Sep 04.

    Exhibit E.  Letter, AFPC/DPPPO, dated 15 Oct 04.
    Exhibit F.  Letter, SAF/MRBR, dated 22 Oct 04.
    Exhibit G.  Letter, Applicant, undated.