RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03726
		INDEX CODE:  137.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be paid the interest he lost when he withdrew funds from an investment account to participate in the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

He elected to participate in the SBP as a result of fraudulent information from the Defense Finance and Accounting Service (DFAS).  Therefore, he should be paid the lost interest on the money he withdrew for the buy in premium of the SBP.

In support of his appeal, supportive statements, electronic messages (e-mail), and other documents associated under the manner under review.

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

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STATEMENT OF FACTS:

The relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are at Exhibits B and H.

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AIR FORCE EVALUATION:

DFAS-RPB-TQAL/CL indicates that in order to make an election into the SBP open season, a payment of a buy in premium was required to cover the period of time from the first date that an SBP election could have been made.  The payment of the buy in premium could be accomplished through an immediate lump sum payment, monthly deduction, or a combination of the two.  The size of the buy in premium for the applicant was in excess of the monthly deductions, so a lump sum payment was required.  Upon noting the size of the monthly deductions, and the fact that the buy in premium did not reduce the taxable pay, the applicant requested that his election be canceled and all amounts be refunded.  The election was canceled and a refund of the amounts paid and withheld was made.  As the premiums did not reduce the taxable pay, they were reported as being received in 2006 and included in the 1099-R for 2006.  The applicant wanted those funds reported in 2007, when they were actually received.  The 1099-R for 2006 was corrected to comply with his request.

According to DFAS-RPB-TQAL/CL, there is no statute authorizing the payment of interest on amounts refunded by the government.  Although the applicant may have been given incorrect or incomplete information, there was no attempt to defraud him.

A complete copy of the DFAS-RPB-TQAL/CL, with attachment, is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 7 Dec 07 for review and response within 30 days (Exhibit C).  By letter, dated 6 Jan 07 [sic], the applicant’s spouse provided a statement on his behalf for the Board’s consideration (Exhibit D). 

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ADDITIONAL AIR FORCE EVALUATION:

In an email, dated 13 Mar 08, AFPC/DPSIAR indicated their belief that whoever advised the applicant regarding the taxability of the buy in premium discharged their duties correctly, lawfully, and in good faith (Exhibit E.)  

The Agency Legal Advisor recommends denial noting the applicant enrolled during a period of open enrollment believing the SBP buy in could be paid with pre-tax dollars.  However, only the prospective SBP premiums can be paid with pre-tax dollars.  When the applicant realized this, he was allowed to disenroll from the program and had his money returned and given a corrected 1099-R.  He asserted he should be paid lost interest on the money withdrawn from an investment account to pay the buy in because the conduct of the DFAS representative with whom he was communicating constituted fraud.

The Legal Advisor indicates that he has reviewed the facts and circumstances and believes there was no fraud in this case.  Further, in his view, there is no error or injustice that supports the requested relief.

A complete copy of the Legal Advisor’s evaluation is at Exhibit H.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the AFPC/DPSIAR e-mail was provided to the applicant on 27 Aug 08 for review and response within 30 days (Exhibit F).  By letter, dated 18 Sep 08, the applicant’s spouse provided a statement on his behalf for the Board’s consideration (Exhibit G).

A copy of the Air Force evaluation was forwarded to applicant on 16 Oct 08 for review and response within 30 days.  As of this date, no response has been received by this office (Exhibit I).

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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 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 error or injustice.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions and the documentation presented in support of his appeal sufficiently persuasive to override the rationale provided by the AFRBA Legal Advisor.  No evidence has been presented which convinces us the applicant elected to participate in the SBP based on fraudulent information.  Further, he has been allowed to disenroll from the program and all monies returned to him.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we agree with the recommendation of the Legal Advisor and adopt his rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing he has suffered either an error or an injustice.  Accordingly, 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 AFBCMR Docket Number BC-2007-03726 in Executive Session on 16 Dec 08, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Oct 07, w/atchs.
    Exhibit B.  Letter, DFAS-RPB-TQAL/CL, dated 4 Dec 07,
                w/atch.
    Exhibit C.  Letter, SAF/MRBR, dated 7 Dec 07.
    Exhibit D.  Letter, applicant’s spouse, dated 6 Jan 07.
    Exhibit E.  E-mail, AFPC/DPSIAR, dated 13 Mar 08.
    Exhibit F.  Letter, AFBCMR, dated 27 Aug 08.
    Exhibit G.  Letter, applicant’s spouse, dated 18 Sep 08.
    Exhibit H.  Letter, Legal Advisor, dated 15 Oct 08.
    Exhibit I.  Letter, SAF/MRBR, dated 16 Oct 08.