IN THE CASE OF: BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20160015135 BOARD VOTE: ____X_____ ___X____ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20160015135 BOARD DETERMINATION/RECOMMENDATION: 2. The Board determined the evidence presented is sufficient to warrant amendment of the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20150005639, dated 4 February 2016, to show the applicant is authorized a pecuniary benefit in the amount of $15,767.85 based on overpayment of FITW erroneously calculated against his military retired pay. _____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20160015135 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). CONSIDERATION OF ADDITIONAL EVIDENCE: 11. On 18 August 2016, new information was received from the applicant and the Defense Finance and Accounting Service (DFAS) regarding the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150005636, dated 4 February 2016. 12. The applicant requests entitlement to pecuniary benefits for excess payment of Federal Income Tax Withholding (FITW) based on estimated FITW calculations provided to him by DFAS. Of note, there were no reported FITW for calendar years (CY) 1987 through 2001. YEAR FITW Refund 2012 $1,952.64 2011 $1,765.46 2010 $1,293.96 2009 $1,354.12 2008 $1,485.98 2007 $1,034.74 2006 $672.48 2005 $915.82 2004 $1,640.04 2003 $1,759.89 2002 $1,242.40 1986 $650.32 TOTAL $15,767.85 ADDITIONAL REFERENCES: 1. Department of Defense (DOD) Federal Management Regulation (FMR) 7000.14-R, Volume 7B, chapter 10, section 1003 states payments based on a correction of military records must be made in the amounts determined to be due by applying pertinent laws and regulations to all material facts shown in the corrected record. Generally, the payments resulting from the correction of military records are based on the: a. pay entitlements the member had before the correction, b. actual payments made for these entitlements, or c. new pay entitlements that accrue as a result of the correction. 2. DOD FMR, Volume 7B, paragraph 2411 (Processing correction of record cases), sub-paragraph 241101 (Amounts Previously Paid and Reported), states when amounts previously paid and reported as FITW wages are not subject to FITW as a result of the correction, the member is provided either a corrected Internal Revenue Service (IRS) Form 1099-R for the 3 calendar years before the year that the correction action is made or a letter citing the "before" and "after" amounts for each calendar year involved. The member then may obtain a tax refund, if any is due, from the IRS based on his or her total tax liability for 3 years. In accordance with 52 Comptroller General 420 (1973) decision, a claim for the refund of income taxes paid in years prior to the 3-year period may be treated as a claim for pecuniary benefits under Title 10, USC, section 1552 and paid pursuant to the record correction. ADDITIONAL DISCUSSION: 3. At the time of the decision of the ABCMR in Docket Number AR20150005639 on 4 February 2016, it was the intent of the ABCMR to make the applicant's record as administratively correct as it should properly have been at the time. 4. The ABCMR's decision in Docket Number AR20150005639 did not authorize pecuniary benefits (payment) of FITW erroneously paid by DFAS to the Department of the Treasury on behalf of the applicant for CY 2002 through 2012 (inclusive) and CY 1986. As he entered service prior to 24 September 1975, his disability retired pay should be excluded from his gross income and by law his disability retired pay should not have been reduced by FITW. 5. Based on the evidence provided by the applicant and DFAS, the pecuniary benefit owed the applicant for overpayment of FITW is estimated to be $15,767.85. Thus, it would be appropriate for DFAS to pay the applicant the pecuniary benefit he is authorized by law. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS SUPPLEMENTAL RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150005639 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS SUPPLEMENTAL RECORD OF PROCEEDINGS Enclosure 1 ABCMR Supplemental Record of Proceedings (cont) AR20150005639 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS SUPPLEMENTAL RECORD OF PROCEEDINGS Enclosure 2