RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03705 COUNSEL: None HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: The amount reported on her Form W2, Wage and Tax Statement, as submitted by the Defense Finance and Accounting Service (DFAS) to the Internal Revenue Service (IRS) in 2009, be corrected. _________________________________________________________________ APPLICANT CONTENDS THAT: Her court-martial order states that the fine, which was part of her recommended punishment, was not approved. The Air Force Court of Criminal Appeals decision notes indicate the same. In support of her appeal, the applicant provides copies of her General Court-Martial Order, investigation documents, a personal statement, the Air Force Court of Criminal Appeals decision, DFAS correspondence, collection documentation, appeal documents, and Department of Treasury correspondence. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 18 April 2007, while serving in the grade of senior airman, the applicant faced a general court-martial for one specification of making a false official statement, in violation of Article 107, Uniform Code of Military Justice (UCMJ); and, one specification of larceny, in violation of Article 121, UCMJ. According to the General Court-Martial Order, the applicant did, at Kunsan Air Base, Republic of Korea, on or about 8 November 2004, with the intent to deceive, sign an official document, to wit: PCS In-processing Worksheet BAQ Certification, in which she stated, “I receive BAQ at the with-dependent rate for my spouse, child, and/or parent. My dependents [sic] current address is: 436 W. 49th Street, New York, New York 10023.” which document was false in that she did not have dependents residing at 436 W. 49th Street, New York, New York, and was then known by her to be false. In addition, the applicant did, at or near Kusan Air Base, Republic of Korea, and at or near the continental United States, on divers occasions between on or about 1 November 2004 and on or about 28 September 2006, steal United States currency, to wit: military allowances and entitlements, military property, of a value of over $500, the property of the United States. The applicant pled not guilty to the offenses, but was found guilty of the charges and specifications by a panel of officer and enlisted members. The panel members sentenced the applicant to a bad conduct discharge (BCD), confinement for four months, a fine in the amount of $11,940.00, forfeiture of all pay for four months, and reduction to the grade of airman basic (E-1). On 18 July 2007, the convening authority approved the findings and only so much of the sentence as approved for a BCD, confinement for four months, and reduction to the grade of airman basic. On 17 September 2008, the Air Force Court of Criminal Appeals affirmed the findings and sentence. On 15 January 2009, the United States Court of Criminal Appeals denied the applicant’s petition for review, making the case final and conclusive under the UCMJ. As a result, on 2 March 2009, the applicant’s BCD was ordered to be executed. In response to an inquiry from the applicant disputing her indebtedness with the Department of Defense, on 30 September 2011, DFAS indicated the applicant’s debt in the amount of $15,194.89 was valid. They stated that added interest, penalty, and administrative fees, totaling $899.71, brought the balance due to $16,094.60. They also indicated the debt consists of two parts. The first part was due to the overpayment of Variable Housing Allowance (VHA) for the periods of 4 November 2004 through 30 November 2004, and 23 November 2005 through 30 March 2006. The second part was due to her forfeiture of pay which was not fully collected prior to her separation. _________________________________________________________________ AIR FORCE EVALUATIONS: DFAS-IN recommends denial. DFAS-IN states the applicant was discharged from the service due to a General Court-Martial Order, dated 18 July 2007. Final sentence resulted in a BCD, confinement for four months, forfeiture of all pay for four months (confinement period), and reduction to the grade of airman basic. When final review of all pay and allowances was calculated, it was determined that VHA for the periods 4 November 2004 through 20 November 2004 and 23 November 2005 through 30 March 2006, was an over payment. This alone resulted in a debt of $10,307.23. The balance of the applicant’s debt is the collection of pay and allowances for excess leave. The debt was not part of the wages reported for tax year 2007. There was no W-2 issued for tax year 2008. Once the debt was determined to be valid, it was reported to the IRS as unearned income. No relief is necessary as the debt is valid. The complete DFAS-IN evaluation is at Exhibit D. AFLOA/JAJM states the applicant correctly points out that a fine was not included in the approved sentence from her 2007 general court-martial. JAJM offers no opinion on the question of how this affects the applicant’s request for relief. The complete JAJM evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: The DFAS letter has errors and incorrect information. Final action in her court-martial indicates that only so much as provided for a BCD, confinement for four months, and reduction to the grade of airman basic was approved. In the approved action, there is no further mention of a fine of $11,940.00 or forfeiture of pay for four months. AFLOA/JAJM supports her claim that no fine or monies owed were included in her approved sentence. The injustice is the fines were removed and should be reflected as such by DFAS and the collection agency records, as the fines were not approved by the convening authority. The collection agency should no longer be harassing her, as these fines were never valid. The IRS confirms her claim showing a reporting error. The IRS determined that the income was reported and taxes were paid. The IRS has corrected the error by dismissing the Form W2 reported by the Air Force and amending the amount owed to the IRS from $3,922.00 to $0.00 owed. Based on the false amount DFAS says was taxable wages, she has provided documentation as proof to support the IRS based their decision on such evidence. The applicant’s complete rebuttal, with attachments, is at Exhibit F. _________________________________________________________________ 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 that would warrant action by the Board. The applicant is requesting the amount reported on her Form W-2 in 2009 be corrected; however, we note that this Board lacks authority to make a direct correction to the W-2 and can only correct an underlying Air Force record that may have caused the W-2 to be in error. The applicant attributes the amount reflected on her W-2 as incorrect in the belief it reflects the amount of the fine and forfeiture of pay she was originally assessed by sentence of court-martial. However, she asserts the fine and forfeitures were not approved by the appeal authority. Based on the evidence of record and in an attempt to guide the applicant to the proper office for resolution, we determined the applicant is correct in that, the original court-martial punishment included a fine in the amount of $11,940.00 and forfeiture of all pay and allowances for a period of four months. We also concur that these portions of the proposed punishment was later suspended by the convening authority and confirmed by the Air Force Court of Criminal Appeals. However, based on our review of the evidence, we have determined that the fine and assessed forfeitures are not the source of the erroneous reporting to the IRS. Rather, a portion of the current debt is a result of the erroneous payment of pay and allowances during the applicant’s four months of incarceration and the requirement under law, Title 10, Section 858B, which requires an automatic forfeiture of pay and allowances for any sentence that includes confinement of six months or less and either a Bad Conduct or Dishonorable discharge. While we find no basis for the Board to grant the applicant any relief, we believe she is the victim of an error caused by the DFAS. In this regard, we note that since DFAS erroneously paid the applicant pay and allowances through July 2007, through no fault of the applicant, we advise the applicant to petition the DFAS to request a remission for that portion of her debt. Notwithstanding this determination, the remaining portion of her debt includes monies owed in the amount of $10,307.23 due to overpayment of Variable Housing Allowance (VHA) for the periods 4 November 2004 through 30 November 2004 and 23 November 2005 through 30 March 2006, which was incurred by the applicant’s own misconduct of falsifying VHA entitlements and as such, is a valid debt. Therefore, based on the foregoing, there is no basis for the Board to take action on the applicant’s request. _________________________________________________________________ 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 AFBCMR Docket Number BC-2011-03705 in Executive Session on 17 July 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2011-03705: Exhibit A. DD Form 149, dated 13 Sep 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, DFAS/IN, not dated. Exhibit D. Letter, AFLOA/JAJM, dated 24 Oct 11. Exhibit E. Letter, SAF/MRBR, dated 2 Dec 11. Exhibit F. Letter, Applicant, dated 02 Dec 11, w/atchs.