RECORD OF PROCEEDINGS

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

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  The Enlisted 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.    

APPLICANT’S CONTENTIONS

The SSB Agreement was violated and his SSB was recouped for reasons not listed on the contract.  There was a misrepresentation or concealment of facts.  The SSB Agreement failed to disclose the provisions of 10 U.S.C § 1174(h) and 10 U.S.C. § 1174(g), which requires recoupment of SSB upon receipt of Veterans Affairs (VA) disability compensation.  The VA recouped $73,890, in violation of the SSB Agreement.  

The SSB Agreement was a legal binding contract and was required to include all provisions of law.  The failure to disclose relevant information renders the contract invalid.  Per 10 U.S.C. § 1174(e)(1)(A), he was required to serve a three year RSO, this time should be considered active duty service and he be granted a military retirement.  He complied with the provisions and was transferred to the Air Force Reserve.  

The SSB Agreement contained provisions per 10 U.S.C § 1174(h), which required recoupment of the SSB if he later became eligible for military retirement pay.  This was the only condition listed for which SSB could be recouped.  The SSB Agreement failed to include provisions that required recoupment if the SSB recipient became entitled to VA disability compensation.  Had the SSB Agreement included the provisions the SSB would be recouped if he became entitled to VA disability pay, he would have chosen not to participate in the SSB program because as his medical records prove, he was already exhibiting early signs and symptoms of coronary artery disease.  He would have chosen to remain on active duty until retirement eligibility, which was less than three years away or would have elected to participate in the Voluntary Separation Incentive (VSI) Program. 

On 16 Jan 04, the VA granted him service connection for his heart condition, resulting in a recoupment of $73,890.99.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 7 Aug 92, the applicant signed an SSB Agreement.  Item 1 of the SSB Agreement states, Pursuant to 10 U.S.C. § 1174a, in consideration of receiving SSB for $73,545.71, he agreed to separate from active duty and accept an enlistment in or transfer to the Ready Reserve for a period of three years beyond any existing service obligation.  The new serve obligation date shows 5 Sep 05.  Item 1(d) states, Should he later become eligible for retired pay under 10 or 14 U.S.C., based in part on active duty for which he received SSB, he would have an amount deducted from each payment of that retired or retainer pay until the amount deducted equals the amount of SSB received.  

The applicant provides a DD Form 214 Worksheet, which shows he was honorably released from active duty on 5 Sep 92 in the grade of senior master sergeant, with a narrative reason for separation of “Voluntary Release/Transfer to another service component for early release program-Special Separation Benefit.”  Item 18, Remarks, states “SSB $73,545.71 paid in lump sum.”  He was credited with 16 years, 9 months and 12 days of active duty service.  

The applicant provides a VA Statement of the Case dated 25 Feb 05.  The applicant was informed that 38 U.S.C. precluded receiving more than one award of pension, compensation or retirement pay.  The VA denied the applicant’s request that his SSB not be recouped.  The VA stated the applicant was discharged on 5 Sep 92 and received SSB of $73,545.71.  The applicant contended the agreement he signed only stated the SSB would be recouped if he later became entitled to military retired pay.  A copy of the SSB Agreement furnished by the applicant did not show any mention of what would occur if he began to receive the VA disability compensation benefits.  However, 38 CFR 3.700(a)(5) required recoupment of the SSB when he became entitled to VA disability compensation benefits.  On 3 Jul 08, the VA denied the applicant’s reconsideration request that his SSB not be recouped and upheld the decision that the recoupment was proper.   

In a letter dated 11 Oct 19, SAF/IGQ advised the applicant they received his Air Force Inspector General (IG) Hotline complaint regarding the breach of his SSB agreement.  However, his request was not within the purview of the IG.  The applicant was advised to submit a BCMR application.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the Applicable Authority.  
   
APPLICABLE AUTHORITY

Under 10 U.S.C. § 1174(a), the Secretary concerned may carry a special separations benefits program under this section.  

Per 10 U.S.C. § 1174(h)(1), A member who has received separation pay based on service in the Armed Forces, and who later qualifies for retired pay shall have deducted from each payment of such retired or retainer pay an amount as determined, taking into account the financial ability of the member to pay and avoiding the imposition of undue financial hardship, until the total amount deducted is equal to the total amount of separation pay so paid.  

Per 38 CFR 3.700(a)(5), Not more than one award of pension or compensation of retirement pay will be made based on the same period of active duty service.  The VA is prohibited from paying compensation to a veteran who received certain separation benefits from the Department of Defense (DOD), to include separation pay, SSB and Voluntary Separation Pay (VSP).  Per 10 U.S.C. § 1174,(h)(2) recoupment of separation pay from disability compensation is required.  

In accordance with 10 U.S.C. § 7314, Active duty enlisted members with at least 20 years of active duty service may request retirement for years of service. The applicant did not complete 20 years of active duty service.  

Public Law 102-484 and the Fiscal Year 1993 National Defense Authorization Act (FY93 NDAA), Congress enacted the Temporary Early Retirement Authority (TERA), which permitted selected military members to retire early.  Under the law, the Secretary of Defense was authorized to allow the Service Secretaries to permit early retirement for selected military members with more than 15 but less than 20 years of active service.  The applicant requests his 3 year RSO be considered active duty service and he be retired with less than 20 years of service.

AFI 36-2603, Air Force Board for Correction of Military Records, paragraph 3.4.4, applicants have the burden of proof of providing evidence in support of their claim.  The applicant’s military human resources record (MHRR) is not available.  The applicant’s Veterans Benefits Management System (VBMS) records are limited and do not contain a DD Form 214 or the SSB agreement.  The applicant provided copies of his DD Form 214 Worksheet, the SSB Agreement and documentation from the VA.    

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.  While the applicant contends his SSB Agreement was fraudulent and the Air Force violated the terms of the agreement, the Board finds no evidence of this to be the case.   By law, a member cannot receive separation pay and later receive military retired pay, pension or compensation.  Accordingly, the VA advised the applicant recoupment of his separation pay was required in order to receive VA compensation.  The applicant also requests he be granted a military retirement and be credited with 20 years of active duty service; however, he did not serve 20 years to qualify for a length of service retirement.  In view of this, the Board does not find it in the interest of justice to credit the applicant for a period of service he did not serve solely to provide an entitlement he did not earn through service.  Correspondingly, there is no evidence the applicant applied for VSI, instead of SSB, or that he was eligible for or requested retirement under TERA to warrant granting the requested relief.  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 Air Force Instruction 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-2020-00143 in Executive Session on 22 Apr 21:

 , 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 29 Oct 19.
Exhibit B:	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.