ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00143-3

XXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

The Board reconsider his request for the following:

1. The Special Separation Benefit (SSB) Agreement he signed on 7 Aug 92 be void.

2. He be granted a military retirement and be credited with 20 years of active duty service.

3. In the alternative, his three year Reserve Service Obligation (RSO) be considered active duty time and he be retired with full retirement benefits effective 6 Sep 95, with 19 years of active duty service.

4. His SSB Agreement be changed to a Voluntary Separation Incentive (VSI) Agreement.

He also requests, he be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty, to reflect his active duty service from 24 Nov 75 to 9 Nov 20 and retirement orders be issued, effective 10 Nov 20.  

RESUME OF THE CASE

The applicant is a former Air Force senior master sergeant (E-8).

On 22 Apr 21, the Board considered and denied his request to void his SSB agreement and grant a length of service retirement.  The Board noted, by law, a member cannot receive separation pay and later receive military retired pay, pension or compensation.  Further, there was no evidence the applicant applied for voluntary separation incentive (VSI) rather than SSB; nor was there any evidence the applicant was eligible for or applied for early retirement under the Temporary Early Retirement Authority (TERA).  The Board also found the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).   

On 11 Aug 21, the Board denied the applicant’s 28 Jun 21 request for reconsideration; finding the applicant did not provide any new or relevant evidence.

For an accounting of the applicant’s original requests and the rationale of the earlier decisions, see the AFBCMR Letter and Record of Proceedings at Exhibit E. 

On 12 Dec 21, the applicant requested reconsideration of his request.  He contends the Board failed to consider his issue was before the Veterans Affairs (VA) from Jan 04 to May 20 for adjudication.  He argued the VA and the Defense Finance and Accounting Service (DFAS) had breached the terms of the SSB Agreement.  The VA ruled on 1 May 20, the recoupment of his SSB was proper.  Accordingly, his application to the AFBCMR is timely as 1 May 20 is the date of discovery.   

The Board also failed to consider the Air Force did not disclose that 10 U.S.C. § 1174(h)(2) applied to the SSB Agreement, which caused an injustice for him.  Based on the language of the SSB Agreement, reasonable minds would conclude the SSB could only be recouped if he later became eligible for military retirement pay.  He was harmed because of the invalid SSB agreement.  He never agreed to participate in any program in which the SSB would be recouped if entitled to VA disability compensation.  A contract requires agreement on all parties.  He is entitled to the retirement benefits he would have earned if the SSB Agreement never existed. The Air Force failed to inform the VA or DFAS he had been granted a de facto waiver from the provisions of 10 U.S.C. § 1174(h)(2).  The Board also did not consider under the conditions of the SSB Agreement that he agreed to trade three years of active duty service in exchange for a three year RSO on condition that his SSB could only be recouped if he later became eligible for military retirement.  However, his SSB was recouped for other reasons.  

His DD Form 214 clearly indicates he actually served 17 years, 9 months and 6 days of active duty with 20 years, 4 months and 28 days total military service for pay and not the 16 years, 9 months and 12 days stated by the AFBCMR.  The Board should grant him a military retirement with 20 years, 9 months and 6 days of active duty and 23 years, 4 months and 28 days of total military service for pay he would have earned if the SSB Agreement never existed.

The Inspector General (IG) advised his case included his military human resources record (MHRR) and advisories from the offices of primary responsibility (OPR); however, there is no MHRR or an advisory, as required, which suggests his case was denied without due process.  The Board should secure his MHRR and retrieve an advisory from the OPR before deciding his case, or in the absence of the documents, decide the issue in his favor.

The Board’s decision clearly illustrates that the panel members were unfamiliar with the tenets of contract law and unable to correctly calculate his total active service.  The Air Force failed to include in the language of the agreement that the provisions of 10 U.S.C. 1174(h)(2) applied. This caused the Air Force to receive the full benefit but left him the victim of an error or injustice.  He was harmed because the Air Force violated the tenets of contract law.  

He was advised by the base legal office if the issue cannot be resolved by the AFBCMR, his only recourse is to file a lawsuit against the Air Force.  It does not seem to be in the best interest of the Air Force to have dirty laundry aired in public when the Secretary of the Air Force and the Board have the authority to resolve the injustice and grant his request.  

The applicant’s complete submission is at Exhibit F.

APPLICABLE AUTHORITY/GUIDANCE

10 U.S. C. § 1174(h)(2), A member who has received separation pay under this section, or severance pay or readjustment pay under any other provision of law, based on service in the armed forces shall not be deprived, by reason of his receipt of such separation pay, severance pay, or readjustment pay, of any disability compensation to which he is entitled under the laws administered by the Department of Veterans Affairs, but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay, severance pay, and readjustment pay received, less the amount of Federal income tax withheld from such pay.   

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The applicant contends his SSB Agreement is invalid as it did not state his separation pay would be recouped if he later became entitled to VA compensation and that he was granted a de facto waiver for the recoupment.  However, the applicant is reminded by law, 10 U.S. C. § 1174(h)(2), the separation pay was required to be recouped for entitlement to the VA compensation.  Moreover, this Board, which serves on behalf of the Secretary of the Air Force, is without authority to direct the VA to refund the applicant the separation pay the VA recouped.  The applicant also requests he receive active duty service credit for his RSO; however, the Board does not find it in the interest of justice to credit the applicant with a period of active duty service he did not serve solely to permit a length of service retirement and entitlement to retired military pay.  The applicant also contends he was denied due process as his MHRR was not reviewed and there is no advisory opinion from an office of primary responsibility (OPR).  As documented in the Record of Proceedings dated 4 May 21, the Board on 22 Apr 21 reviewed pertinent documentary evidence from the applicant’s MHRR (Exhibit B).  While an advisory opinion was not issued by an OPR, there is no mandatory requirement for advisory opinions to be prepared for every case presented to the Board.  In the applicant’s case, the Board determined the evidence presented by the applicant, the pertinent documents in the applicant’s MHRR and the Applicable Authority/Guidance were sufficient to adjudicate the applicant’s case.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2020-00143-3 in Executive Session on 30 Jun 22:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit E:	Record of Proceedings, w/ Exhibits A-D, dated 22 Apr 21.
Exhibit F:	Application, DD Form 149, w/atchs, dated 12 Dec 21.
Exhibit G:	Documentary evidence, including relevant excerpts from official records.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.