RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2022-00129

XXXXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Change his voluntary discharge to a retirement under the Temporary Early Retirement Authority (TERA) program.

APPLICANT’S CONTENTIONS

He was given the option for either Voluntary Separation Incentive (VSI) [sic] or early retirement (15 years).  He chose voluntary separation because of hardships his family was experiencing.  However, he now chooses early retirement because when he applied for Veterans Administration benefits, he was told they had to deduct all VSI payments from his disability pay before he could receive his first check, and they did.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force staff sergeant (E-5).

On 4 Oct 78, according to DD Form 214, Certificate of Release or Discharge from Active Duty, the applicant entered the Regular Air Force.

On 10 Jan 95, according to DD Form 214, the applicant was released from active duty and transferred to the Air Force Reserve.  His Narrative Reason for Separation is “Early Release Program – Special Separation Benefit [SSB].” Item 18, Remarks, indicates he received an SSB payment in the amount of  $45,787.95.  He was credited with 16 years, 3 months, and 7 days of  active service.

On 24 Apr 14, according to Department of Veterans Affairs decision letter, provided by the applicant, he was awarded disability compensation with a combined rating of 70 percent, effective 1 Jul 13, with benefits withheld to equal the amount paid under SSB, minus the amount of federal income tax withheld.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and E.  

APPLICABLE AUTHORITY/GUIDANCE

During the force drawdown in the 1990s, Congress authorized two types of voluntary separation incentives, SSB (10 U.S.C. §1174a) and VSI (10 U.S.C. §1175). These separation incentives were designed to help the services reduce over-manning in certain active component pay grades or occupational specialties. As a condition of VSI or SSB receipt, servicemembers were required to maintain an affiliation with the Ready Reserve, either by joining drilling units in the Selected Reserve or becoming part of the manpower pool known as the Individual Ready Reserve. VSI recipients were required to maintain this affiliation for the duration of their VSI payments (with some exceptions), while SSB recipients were required to serve a minimum of three years. Servicemembers could receive only one of these two payments and were not eligible to receive these payments and active or reserve component pay concurrently. The authority to offer incentives expired on 31 Dec 01.

Mandatory Recoupment: Servicemembers who receive any of these payments and later become eligible for military retired pay for regular or reserve service, or veteran disability compensation, are subject to recoupment provisions. These provisions have been part of statute since the benefits were first enacted, as part of historical efforts by Congress to prohibit the receipt of two government benefits for the same period of service or qualifying event. Veteran Disability Compensation Deductions:   Under 10 U.S.C. §1174(h)(2), a servicemember who receives separation or severance pay for a specific period of service is eligible to receive VA disability compensation for that period of service; however, the after-tax separation pay amount is withheld from the VA disability compensation. 

AIR FORCE EVALUATION

AFPC/DP2STM recommends denying the application.  The applicant had the option to separate and take SSB or separate under the TERA program.  In 1995, he chose to separate with SSB and received separation pay under this program.  The federal law that governs the program and authorized payment of an SSB was Title 10, United States Code, Section 1174a, Special Separations Benefits Programs.  This law requires recoupment from any earned disability compensation of 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 SSB pay.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 9 May 22, for comment (Exhibit D) but has received no response.

ADDITIONAL AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the application.  In the National Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, dated 23 Oct 92, Congress enacted TERA, which permitted selected military members to retire early. Section 534 of that law gave the Secretary of Defense authority to allow the Service Secretaries to permit early retirement for selected military members having more than 15 but less than 20 years of active service.  The applicant was eligible to apply for TERA.  As stated in his DD Form 149, Application for Correction of Military Record, he was aware of his options for either VSI or early retirement (15 years).   He elected to take VSI instead.   

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 31 Oct 22, for comment (Exhibit F) 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. As noted above, during the applicant’s period of service, Congress authorized two types of voluntary separation incentives, SSB and VSI. These separation incentives were designed to help the services reduce over-manning in certain active component pay grades or occupational specialties. The applicant states he was separated under VSI; however, his DD Form 214 indicates he was separated under SSB. When the applicant was offered the option to separate and receive SSB, or retire under the TERA program, he elected and received an SSB payment.  Therefore, the Board concurs with the rationale and recommendation of AFPC/DP2STM 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 Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  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.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2022-00129 in Executive Session on 19 Jan 23:

, 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/atch, dated 17 Nov 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2STM, dated 3 May 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 9 May 22.
Exhibit E:	Advisory Opinion, AFPC/DP2SSR, dated 29 Aug 22.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 31 Oct 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.