RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02981

xxxxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The recoupment of his Voluntary Separation Incentive (VSI) benefits be waived. 

APPLICANT’S CONTENTIONS

He did not know he could request a waiver for recoupment of his VSI benefits in order to receive his disability compensation from the Department of Veterans Affairs (DVA).  He is currently rated at 30 percent disabled and will not collect any DVA benefits until 1 Sep 25.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force staff sergeant (E-5) who was discharged on 1 Oct 92.

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the application.  On 1 Oct 92, the applicant was discharged from the Air Force after accepting Voluntary Separation Incentive (VSI) pay.  The federal law that governs the program and authorized payment of a VSI/SSB is 10 U.S.C, section 1174a, Special Separations Benefits Programs.  This law requires recoupment from any earned disability compensation an amount equal to the total separation pay less the amount of federal income tax withheld. The law does not stipulate a repayment schedule and does not include a provision for the Service Secretary, or anyone, to waive the recoupment requirement for the VSI/SSB separation pay.   

The complete advisory opinion is at Exhibit B.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 27 Jan 22 for comment (Exhibit C), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSR and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes 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 AFI 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2020-02981 in Executive Session on 21 Mar 22:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 5 Sep 20.
Exhibit B:	Advisory Opinion, AFPC/DP2SSR, dated 23 Jun 21.
Exhibit C:	Notification of Advisory, SAF/MRBC to Applicant, dated 27 Jan 22.

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.