IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008	

		DOCKET NUMBER:  AR20080009365 


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).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, remission of his $275.04 debt to the Government.

2.  The applicant states, in effect, that he was notified by the Defense Finance and Accounting Service (DFAS) that he was indebted to the Government in the amount of $275.04 as a result of receiving pay and allowances for a battle assembly (Drill) during the period 8-9 December 2007, beyond his official date of separation which was 19 November 2007.  He claims he was ordered to continue to attend all battle assemblies until he received his official separation orders, which he did not receive until 10 January 2008.  He also states that his discharge orders stated in the additional instructions that "Soldier was held beyond normal discharge date through no fault of the Soldier," and therefore he should not be penalized for this payment.  

3.  The applicant provides the following documents in support of his application:  Headquarters, Army Reserve Medical Command, Orders Number 07-323-00012, dated 19 November 2007; Separation Document (DD Form 214); Statement of Understanding-The Selective Reserve Montgomery GI Bill (DA Form 5435-R); Jumps-JSS Pay Elections (DA Form 3685); Selected Reserve Incentive Program-Enlistment Bonus Addendum (DA Form 5261-R); Student Loan Repayment Program Addendum (DA Form 5261-4-R); Statement of Understanding (USAREC Fm 1150); Applicant Medical Prescreening Form
(DD Form 2246); Enlistment Eligibility Questionnaire (USAREC Fm 1104); Record of Military Processing (DD Form 1966/1); and Army Reserve Medical Command, Orders Number 07-019-00081, dated 19 January 2007.
CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted into the United States Army Reserve (USAR) on 30 March 1998, for a period of 8 years.  Based on his enlistment date, the applicant's expiration term of service (ETS) date was established as
31 March 2006.

2.  On 5 January 2006, the applicant was ordered to active duty in support of Operation Enduring Freedom.  On 22 December 2006, he was honorably released from active duty (REFRAD) by reason of completion of required active duty service.  The DD Form 214 he was issued at the time shows he completed 11 months and 18 days of active duty service.  

3.  Army Reserve Medical Command, Pinellas Park, Florida, Orders Number 
07-019-00081, dated 19 January 2007, reassigned the applicant to 
4005 United States Army Hospital Expansion, Lubbock, Texas, 79403-0000.

4.  Army Reserve Medical Command, Orders Number 07-323-00012, dated 
19 November 2007, shows the applicant was honorably discharged from the USAR with an effective date of 19 November 2007.  The additional instructions state "Soldier was held beyond normal discharge date through no fault of the Soldier."

5.  The applicant's record shows he attended and participated in Battle Assemblies (Drill) during the period 8-9 December 2007, and that on 
28 April 2008, he was notified by the DFAS that he was indebted to the Government in the amount of $275.04 as a result of having received pay and allowances for a period past his official date of separation which was
19 November 2007.

6.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) prescribes Army policies and guidance for remission or cancellation of indebtedness to the United States Army.  It states that applications must be based on injustice, hardship, or both.  This includes debts caused by errors in pay to or on behalf of a Soldier.  

7.  Paragraph 1-6 (Indebtedness to the U.S. Army that may be remitted or canceled under 10 USC 4837) of the remission or cancellation of indebtedness regulation provides that an enlisted Soldier's debts to the United States Army may be remitted or canceled on the basis of this regulation in cases arising from payments made in error to a Soldier; payments made in excess of an allowance on behalf of a Soldier; debts incurred while serving on active duty as a Soldier; debts acknowledged as valid; and debts for which an appeal has been denied.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his debt in the amount of $275.04 was incurred through no fault of his own was carefully considered and found to have merit.  By regulation, a Soldier’s debt may be remitted or cancelled based on injustice, hardship, or both, which includes debt caused by errors in pay to or on behalf of a Soldier.  

2.  The evidence of record confirms the applicant's discharge orders were published by the Army Reserve Medical Command in Florida on 19 November 2007, which is the same date as his effective date of discharge.  Given the orders were published in Florida on the date of his discharge, and he was assigned to a unit and serving in Texas, it is reasonable to presume the applicant and his unit were not in receipt of his discharge orders prior his attending and participating in the unit drills between 8-9 December 2007, and that he performed these duties in good faith.  

3.  The applicant's discharge orders also stipulate that he was held beyond his ETS, and he performed the drill duties.  As a result, it is unjust to penalize him for receiving pay during this period and it would be inappropriate to require him to repay money he legitimately earned in good faith.  

BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Orders Number 07-323-00012, dated 19 November 2007, by showing his effective date of discharge was 10 December 2007; and by showing he was entitled to the pay and allowances he received during the period 8-9 December 2007, for service he performed with the 4005 United States Army Hospital Expansion, Lubbock Texas.

2.  The DFAS should reimburse the individual any portion of the funds that may have already been collected.  




      _______ _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.

ABCMR Record of Proceedings (cont)                                         AR20080009365



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ABCMR Record of Proceedings (cont)                                         AR20080009365
   
   

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