IN THE CASE OF:	  

		BOARD DATE:	        23 April 2009

		DOCKET NUMBER:  AR20080018921 


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 correction of his military records to show that his $18,547.30 debt to the United State government was forgiven. 

2.  The applicant states, in effect, that this debt is unjust.  He contends that he has contacted the Defense Finance and Accounting Service (DFAS), the collection agency, the Human Resources Command, the United States Treasury, and his Congressmen and Senator, all in an effort to clear-up this debt.  He further contends that his discharge was the result of miscommunication, racism, and a push to get rid of him in the worst way possible.

3.  The applicant provides, in support of his application, the following documents:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty) current and voided documents;

   b.  Honorable Discharge Certificate;
   
   c.  Army Discharge Review Board Case Report and Directive, dated 25 June 2007;
   
   d.  letter to Allied Interstate, undated;

	e.  letter from Pioneer Credit Recovery Inc., dated 17 September 2007 with enclosures;

	f.  Department of Veterans Affairs (VA) Statement in Support of Claim, dated 18 December 2007;
	
   g.  letter written to Congressional Representative, dated 8 January 2008;

	h.  two letters from U.S. Senators, dated 9 and 10 January 2008; 

	i.  letter from DFAS to Congressional Representative, dated 17 January 2008 with enclosures;

	j.  letter from Congressional Representative to the applicant, dated 
28 January 2008; and 

	k.  extracts of frequently asked questions concerning claims, waivers and remissions of indebtedness. 

CONSIDERATION OF EVIDENCE:

1.  On 21 December 1998, the applicant while still in high school, enlisted in the United States Army Reserve.  He agreed to and incurred a statutory military service obligation (MSO) of 8 years with a contractual obligation to serve 6 years as an assigned member of a troop program unit (TPU) in the Selected Reserve and 2 years as an assigned member of the Individual Ready Reserve.  He also had the option to voluntarily remain assigned to the TPU for the entire 8-year MSO.  

2.  DA Form 5261 (Selected Reserve Incentive Program - Enlistment Bonus Addendum) signed by the applicant shows he enlisted for training in military occupational specialty (MOS) 12B (Combat Engineer).  This MOS was authorized a bonus of $3,000.00.  The bonus was to be paid in three payments consisting of 50 percent upon completion of initial training and MOS qualification; and of 25 percent upon completion of the second and fourth year of the enlistment term of service.

3.  DA Form 3286-67 (Statement of Understanding - Army Policy) signed by the applicant, shows that he acknowledged he had also enlisted for the Montgomery GI Bill (MGIB) and the Loan Repayment Program (LRP), both educational incentive programs.





4.  DA Form 5435 (Statement of Understanding - The Reserve MGIB) signed by the applicant, informed the applicant that, should he fail to participate satisfactorily, he would lose entitlement to financial educational assistance and "may be required to refund part of the educational assistance, plus interest."  

5.  In 1999 the applicant completed a 4-year course of general studies and graduated from Little Rock High School.  He subsequently completed his initial training and was awarded MOS 12B.  

6.  On 27 April 2001, the applicant was assigned duty as a combat engineer with Company A, 467th Engineer Battalion, United States Army Reserve, in Memphis, Tennessee. 

7.  On 1 May 2001, the applicant was promoted to the rank of specialist, pay grade E-4.

8.  The applicant was mobilized and entered active duty on 12 February 2003.

9.  On or about 22 October 2003, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 87 for missing movement and for violation of Article 91 for willfully disobeying a lawful order.

10.  On or about 28 October 2003, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

11.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

12.  On 16 November 2003, the separation authority approved the applicant’s request for discharge and directed that he be discharged from the United States Army with service characterized as Under Other Than Honorable Conditions.  He was also reduced in rank to pay grade E-1.  On 30 December 2003, the applicant was discharged accordingly.  He had completed 10 months and 19 days of net active service this period and a total of 4 years, 1 month, and 21 days of prior inactive service.

13.  On 25 June 2007, the Army Discharge Review Board (ADRB) determined after a careful examination of the applicant's record of service, consideration of the analyst's recommendation, and testimony from the applicant, that his discharge was inequitable.  While the applicant's misconduct was not condoned, the ADRB found that the applicant's overall length of service to include his service in combat, the circumstances surrounding his discharge, and his post service accomplishments mitigated the discrediting entries in the service record.  Accordingly, the ADRB voted to grant relief in the form of an upgrade of the characterization of service to fully honorable and to change the narrative reason for separation to Secretarial Authority.  This action also restored the applicant's rank of specialist, pay grade E-4, and changed his reentry code to 1.  

14.  In the letter from DFAS to the applicant's congressional representative, dated 17 January 2008, the Director, DFAS, Denver, explained, in effect, that the applicant had incurred a debt resulting from unauthorized payments received from January to June 2004.  This was after his official separation date of 
30 December 2003.  After some adjustments, this debt remained at $13,949.07.  Furthermore, the applicant had not provided any documentation showing that he had not received these unauthorized payments.  The correction of the applicant's characterization of service does not cancel this indebtedness.   The letter indicated that a statement of Military Pay Account, a bonus recoupment worksheet, and a bonus termination worksheet were attached.  However, only the bonus recoupment and termination worksheets were provided with this application.

15.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) outlines the policies and guidance for remission or cancellation of indebtedness to the U.S. Army.  It allows all Active Army Soldiers and those in the Active Guard/ Reserves program to submit an application for remission or cancellation of indebtedness to the U.S. Army.  Guidance is included on the submission and processing of applications for remission or cancellation of indebtedness to the U.S. Army.  This regulation also provides guidance for Soldiers who have been released from active status to include the Army National Guard/Army National Guard of the United States and Reserve Components who have incurred a debt to the U.S. Army.  The objectives of remission or cancellation are to remit or cancel debts to the U.S. Army that are considered to be unjust and to end hardship or undue suffering.  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 as an officer of the U.S. Army; debts acknowledged as valid; debts for which an appeal has been denied; debts for which waiver has been denied; and debts established in a report of survey.  Indebtedness to the U.S. Army will not be remitted or canceled under the following conditions: 
   
   a.  when a Soldier's pay is not reduced promptly in connection with the forfeiture of pay imposed by a court-martial sentence or under article 15 of the Uniform Code of Military Justice (UCMJ); 
   
   b.  after discharge unless the Soldier has reenlisted; 
   
   c.  if a Soldier will receive less than an honorable discharge at time of separation; 
   
   d.  when a member of the Reserve Component is not on full-time active duty; 
   
   e.  when a Soldier is retired, whether the debt occurred before or after retirement; 
   
   f.  when a Soldier is held liable for damage or loss of property to another branch of service; 
   
   g.  when debts are due to loss of public funds obtained or converted to own use through fraud, larceny, embezzlement, or other unlawful means; or 
   
   h.  when debts are due to fines imposed by court-martial sentence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the subject debt is unjust and that it should be forgiven.  He further contends that his discharge was the result of miscommunication, racism, and a push to get rid of him in the worst way possible. 

2.  The available evidence clearly shows the applicant's less than honorable characterization of service was subsequently upgraded to fully honorable.  However, this action does not constitute a basis for canceling his indebtedness.

3.  The letter from DFAS clearly states that the applicant incurred this debt as a result of failing to fulfill his contractual obligations regarding his bonus and by receiving unauthorized payments after his separation from the Army.
4.  The available evidence shows that the applicant received unauthorized payments for approximately 6 months after his separation.  This resulted in a debt of more than $13,000.00.  The applicant contends that the balance is now over $18,000.  He has not provided any mitigating circumstances or convincing argument that would explain why he accepted these payments knowing he was no longer in the Army or why he should be allowed to retain any pay or bonus monies he received for service not rendered..  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   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)                                         AR20080018921



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ABCMR Record of Proceedings (cont)                                         AR20080018921



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