BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090005075 


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, that a debt imposed on her by the Defense Finance and Accounting Service (DFAS) be waived.

2.  The applicant states, in effect, she has been told she owes the military a debt for 2 weeks of active duty pay; however, she does not believe she owes this debt.  She claims that she returned after completing basic training in November 2006 and that the last pay she received was in November 2006.  She states that she was discharged from the New Mexico Army National Guard (ARNG) on 10 January 2007 based on her failure to establish a family care plan.  She claims she had a conversation with a unit noncommissioned officer who informed her he believed she would owe money back to the military and that it would be taken out of her taxes.  She states that she has been billed by DFAS and applied for remission of debt through the New Mexico ARNG, but was denied.

3.  The applicant further states that it is becoming obvious through her interaction with the government, the military, the courts, and the welfare offices, that the government has every intention to force her to lose and/or give up custody of her child through force through harassment for the entire 10 years of her son's life.  She states that it was clearly accidental that she received an extra pay check and she should not continue to be harassed to pay the debt, which she will satisfy based on her limited ability to do so.

4.  The applicant provides the following documents in support of her application:  Basic Training Completion Certificate, dated 27 October 2006; orders endorsement, dated 3 November 2006; discharge request, dated 27 December 2006; discharge orders, dated 10 January 2007; supplemental income letter, dated 18 September 2008; self-authored letter to the Department of Treasury, dated 28 September 2008; self-authored letter to DFAS, dated 31 May 2009; and Catholic Charities letter, dated 23 July 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she enlisted in the ARNG for 8 years on 10 May 2006.

2.  A DD Form 220 (Active Duty Report) on file shows she entered active duty on 9 August 2006.

3.  On 3 November 2006, the U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, published an endorsement to the applicant's original active duty orders that changed the training period from approximately 22 weeks to approximately 9 weeks.  The endorsement indicated that the applicant had completed basic training and that her family care plan had failed.

4.  On 9 November 2006, the applicant was released from active duty and returned to her ARNG unit.

5.  On 10 January 2007, the applicant was discharged from the ARNG under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-35c(1), by reason dependency or hardship affecting the Soldier's immediate family.  The National Guard Bureau Form 22 (Report of Separation and Record of Service) she was issued shows she completed a total of 8 months and 1 day of military service and that her service was described as uncharacterized.

6.  A DFAS administrative report on file shows that the applicant applied for a waiver of a debt of $1,819.48 she incurred as the result of overpayment of pay and allowances during the period 10 November 2006 through 10 January 2007 and that this waiver request was denied.  DFAS indicated that the governing law allows for waiving claims for erroneous payment of pay and allowances made to or on behalf of former members if the collection of the claim would be against equity and good conscience and not in the best interest of the United States.  However, the Comptroller General has ruled that any payment that is legal and proper when paid may not be considered for waiver and at the time the applicant received the $1,819.48 payment it was proper.  Therefore, the debt is not an erroneous payment subject to waiver under the governing law.

7.  In the denial of her waiver request, DFAS informed the applicant that when she was overpaid for active duty service she did not perform, she should have retained the erroneous funds for eventual refund to the government upon demand.

8.  The applicant provides a letter from Catholic Charities, dated 23 July 2009, which indicates the applicant was accepted into their housing program, a transitional housing program that provides rental assistance to homeless single women or men with children.

9.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members) provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army.  Applications must be based on injustice, hardship, or both.  This includes debts caused by payments made in error to the Soldier.  Applications for remission or cancellation of indebtedness to the U.S. Army must be based on injustice, hardship, or both.  This includes debts caused by errors in pay to or on behalf of a Soldier.  Paragraph 1-6 states, in pertinent part, that indebtedness to the U.S. Army may be remitted or canceled under Title 10, U.S. Code, section 4837 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, and debts for which an appeal has been denied.

10.  Paragraph 1-12 of Army Regulation 600-4 outlines factors to consider when determining injustice or hardship.  These factors include the Soldier's awareness of policy and procedures, past or present military occupational specialty, rank, years of service, and prior experience.  The Soldier's monthly income and experiences, the Soldier's contribution to the indebtedness by not having the situation corrected, and additional income or assets (for example, spouse's salary, savings account, and bonds) are taken into consideration.  Additional factors for consideration in determining injustice include evidence that the applicant did not know and could not have known of the error and/or the applicant inquired of proper authority and was told the payment was correct.  Additional factors in determining hardship include that repayment would cause hardship.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was originally scheduled to complete 22 weeks of initial active duty for training, but based on the failure of her family care plan, her active duty tour was cut short and she was released from active duty and returned to her ARNG unit on 9 November 2006 after completing basic training and only 9 weeks of active duty service.  She received additional pay and allowances for active duty service she did not perform and on 10 January 2007 she was discharged from the ARNG with an uncharacterized description of service.

2.  The evidence shows that the applicant received pay and allowances for active duty service she did not perform after her unscheduled release from active duty on 9 November 2006 and that this overpayment resulted in the subject debt.  Although DFAS has concluded that the applicant should have known she was receiving pay and allowances for service she did not perform, given her lack of experience, the unexpected failure of her family care plan, and the hardships she was experiencing at the time, it is not unreasonable to presume she was just not aware of the overpayment until she was informed of the debt around the time of her discharge.

3.  Given it is clear the applicant was and continues to experience extensive hardship as evidenced by the fact she was accepted into a charitable housing program in July 2009, it is obvious that repaying her debt would result in a significant hardship on her and more importantly on her son.  As a result, it would be appropriate and serve the interest of equity and justice to correct her record to show an application for remission or cancellation of indebtedness of $1,819.48 due to an overpayment of pay and allowances was approved in full on 10 January 2007, her discharge date, and to reimburse her any amount of the debt that may have already been collected.

BOARD VOTE:

___x____  ____x___  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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 showing an application for remission/cancellation of indebtedness of $1,819.48 due to an overpayment of pay and allowances for the individual concerned was approved for the full amount of the debt on 10 January 2007 and by reimbursing her any portion of the total debt 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)                                         AR20090005075



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ABCMR Record of Proceedings (cont)                                         AR20090005075



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