IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009096 


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 his $44,132.65 debt be cancelled and any monies already collected to satisfy the debt be refunded.  In the alternative, he requests that the receipts and documentation he submitted be accepted as proof of his entitlement to the money [sic].

2.  The applicant states that he filed valid claims for reimbursement for travel-related expenses, including expenses for lodging.  He supported his claims with valid receipts, including lodging receipts and he originally received $44,132.65.  However, the Defense Finance and Accounting Service (DFAS) has now imposed a debt against him for overpayment of the travel voucher.

3.  The applicant provides additional documentary evidence through counsel in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant’s records to show he was entitled to receive the $44,132.65 that he was initially paid.  In the alternative, counsel requests a waiver of the debt, if the claims were erroneously paid based on improper receipts or documentation.  The applicant subsequently provided valid receipts or documentation to prove his entitlement to the reimbursement.

2.  Counsel, in a 9-page brief, states the applicant, then a sergeant first class (SFC), filed monthly travel claims from April 2003 to March 2007 and received reimbursement for lodging.  On 23 September 2008, the U. S. Army Criminal Investigation Command (USACIDC, also known as CID) submitted a Report of Investigation (ROI) to DFAS.  The ROI concluded the applicant submitted lodging receipts with a fictitious lease agreement for property located in Seminole, FL in order to obtain reimbursement to which he was not entitled.  Counsel further states the applicant contends the CID ROI is flawed; however, DFAS claims validating the accuracy of the CID ROI is not within their purview and they must accept the investigative conclusions without review or question.  Counsel presents the following argument:

	a.  the applicant was legally entitled to the full amount he claimed.  He did not commit fraud or intentionally misrepresent facts in connection with the claim; 

	b.  since he was entitled to the reimbursement, the entire premise of the CID ROI is faulty; and

	c.  the applicant wanted his claims timely paid.  He was advised by his chain of command to submit rental receipts and he relied on their advice to file his claims. 

3.  Counsel submits several letters written to and received from DFAS; a copy of the CID ROI, miscellaneous emails written to and received from DFAS and other individuals, two letters of recommendation, various deployment orders and amendments, several temporary change of station (TCS) orders and amendments, financial statements, and a biography of the applicant’s partner in a private business in support of the applicant’s request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army (RA) for a period of 4 years on 9 April 1997.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  His records also show he executed a 3-year reenlistment in the RA on 13 April 2000.  He was honorably released from active duty in the rank/grade of staff sergeant on 9 April 1997 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of his Reserve obligation.

2.  On 2 April 2003, the applicant was ordered to active duty for a period of 365 days, later extended to 730 days, in support of Operation Enduring Freedom.  He was assigned to Joint Task Force 180 (JTF-180) with duty at MacDill Air Force Base, FL, for deployment to Afghanistan and other countries in the U.S. Army Central Command area of responsibility.  He was promoted to SFC on 1 January 2005 and he executed two 1-year extensions in the USAR on 4 February 2005 and 20 January 2006.  He also executed a 6-year reenlistment on 24 October 2006.  He was honorably released from active duty on 29 March 2007 due to  completion of required active service.

3.  The applicant’s records also show he was appointed as a second lieutenant in the Adjutant General Corps of the USAR and executed an oath of office on 21 March 2008.  He was assigned to the 143rd Sustainment Command, Orlando, FL. 

4.  On 31 January 2008, the Fort Benning, GA, USACIDC, received a Memorandum for Transmittal (MOT) from the TCS Task Force (TF), Washington CID Battalion, Fort Myer, VA, after the Army Internal Review Program provided the TCS TF a suspected fraudulent travel voucher settlement submitted by the applicant.  The investigating officer determined that the applicant committed the offenses of making a false official statement, larceny, fraud, and wire fraud when he submitted receipts with a fictitious lease agreement for property located in Seminole, FL.  Further investigation determined the applicant owned the aforementioned property which he purchased in January 2006 and submitted claims to DFAS in order to obtain reimbursement to which he was not entitled.  After obtaining evidence by interviewing various individuals, including the applicant, coordinating with several commands and/or DFAS, and based on statements and supporting financial documents, the USACIDC concluded, on 19 September 2008, that there was sufficient probable cause to believe the applicant committed the said offenses.  

5.  On 5 December 2008, by letter, DFAS notified the applicant that due to his TCS orders, he received total entitlements and travel advances in the amount of $70,271.50 and that upon completion of his TCS travel, he filed a claim with DFAS for reimbursement.  After computation of his claim, it was determined that he was overpaid the amount of $44,132.65.  

6.  During the period between January and June 2009 the applicant’s counsel and DFAS officials exchanged dozens of emails regarding the debt.  In response to counsel's email, DFAS provided the following responses:

	a.  on 17 March 2008, in an email written to the applicant’s counsel, a DFAS Financial Management Specialist stated that the applicant did in fact submit false rental receipts from February 2006 to March 2007 for lodging reimbursement.  While he was legally entitled to reimbursement for lodging under current regulations and law, his entitlement was based upon the applicant submitting valid and proper receipts.  He did not submit valid receipts.  Instead, he submitted false receipts showing he was renting the property when he, in fact, owned it.  Based upon current Comptroller General Decisions, the lodging portion of the claims had been tainted and must be collected back.  Additionally, under the same ruling, the applicant could not be reimbursed even if he later resubmitted valid and proper supporting documentation.  His only recourse was to file a claim in the U.S. Claims Court;

	b.  on 19 March 2009, in an email written to the applicant’s counsel, a DFAS Financial Management Specialist stated that other individuals’ involvement in the applicant’s submission of false rental receipts had no bearing on the decision.  There are also decisions that involve misinformation provided by Government Agents.  In those decisions misinformation provided to a member does not create an entitlement not otherwise authorized by law or regulation.  The applicant may request a waiver of the debt through his last servicing finance office; and

	c.  on 1 April 2009, by email to the applicant’s counsel, a DFAS Financial Management Specialist stated that if the applicant’s claims were not paid in a timely manner, there were other resources he could have used instead of submitting false receipts.  The Comptroller General’s 1 May 1982 decision specifically states:

We have consistently held, however, the erroneous advice or authorization does not in itself create a right to reimbursement where the expense claimed is precluded by law.  That conclusion is required by the fundamental rule of law that persons receiving money erroneously paid by a Government agency or official acquire no right to the money and are liable to make restitution.  In that connection, we have noted that although the prior misunderstanding or misinformation about the matter was regrettable, that alone could not furnish a proper basis for allowing the employee to keep the erroneous payment, since the Government is not responsible for or bound by the mistakes of its agents or officials, and no legal authority exists which might otherwise serve as a basis for waiving collection of the erroneous payment.

This official also stated in that same email: 

The Defense Office of Hearing and Appeals Case Number 98120402, dated 14 January 1999, reiterates the above Decision that the Government is not responsible for or bound by the mistakes of its agents or officials, and no legal authority exists which might otherwise serve as a basis for waiving collection of the erroneous payment.  The information 
he received from his chain of command and their erroneous actions may not serve as the basis for establishing a valid entitlement to reimbursement since the Government cannot be legally bound by the mistakes of its agents.  The DFAS decision to collect all funds paid to the applicant based on the submission of false receipts is not changed.  The applicant’s only recourse is to file a claim in the U.S. Claims Court.

7.  The applicant submitted two letters of recommendation as follows:

	a.  in a letter of recommendation, dated 27 April 2009, an RA colonel states that he has known the applicant for 3 years and can attest to his exceptional qualities as a leader, trainer, and motivator.  He is consistently proactive, diligent, and dedicated.  He adds that the Government did not show that the applicant’s actions exemplified the elements of fraud as a result of his submission of his travel vouchers.  Nor did the Government show that the applicant knowingly presented false travel and conferred with an officer whom he believed had provided him the correct information; and 

	b.  in a statement of recommendation, dated 4 May 2009, a retired colonel states that the applicant served as his administrative noncommissioned officer (NCO) for the organization.  He describes him as having superb professionalism, bearing, and mission-first attitude.  He adds that he is aware of the circumstances surrounding the rented condominium and that the applicant relied on bad advice as he submitted his receipts for lodging; however, the fact remains that he was due reimbursement for his lodging based on his assignment orders and statement of non-availability over time.  He concludes that the recoupment of this money created a financial hardship on the applicant and his family.

8.  Title 10, Section 2774, US Code provides authority for waiving claims for erroneous payments and allowances made to or on behalf of members or former members of the uniformed services, if collection of the claim would be against equity and good conscience and not in the best interests of the United States.  Generally, these criteria are met by a finding that the claim arose from an administrative error with no indication of fraud, fault, misrepresentation, or lack of good faith on the part of the member or any other person having an interest in obtaining the waiver.

9.  Army Regulation 37-104-4 (Military Pay and Allowances Policy), Chapter 32, paragraph 32-6b, states that all applications for a waiver must show the applicant did not know and could not reasonably have known of the error; and, having knowledge of a probable error, made inquiry to the proper authority and was informed that payment was correct. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the applicant’s records should be corrected to show the amount of $44,132.65 was properly paid to him and that he does not owe a debt.  In the alternative, the applicant and his counsel contend that the applicant should be granted a waiver of the debt or, if the claims were erroneously paid based on improper receipts or documentation, the records should be corrected to show the applicant provided receipts or documentation to prove that he was entitled to the reimbursement and that he does not owe a debt.  

2.  The evidence of record confirms the applicant completed several periods of TCS and filed travel vouchers claiming reimbursement for travel, lodging, and other expenses.  During a routine audit of his travel vouchers by the Army Internal Review Program it was determined that the applicant submitted a questionable or suspect travel voucher settlement.  This information was relayed to the Fort Myer (VA) CID Battalion’s TCS TF and it led to an investigation by the USACIDC.  The investigation determined that the applicant committed the offenses of making a false official statement, larceny, fraud, and of wire fraud, when he submitted receipts with a fictitious lease agreement for property located in Seminole, FL.  The applicant purchased the property in January 2006.  The claims he submitted to DFAS in order to obtain reimbursement stated he was renting the property which he, in fact, owned.  Based on statements and supporting financial documents, the USACIDC concluded that there was sufficient probable cause to believe the applicant committed the said offenses.  Accordingly, DFAS recouped the amount of $44,132.65 due to overpayment.

3.  The applicant solicited the help of counsel who exchanged several emails with DFAS officials.  Counsel was notified that, by law, the Government is not responsible for or bound by the mistakes of its agents or officials, and no legal authority exists which might otherwise serve as a basis for waiving collection of the erroneous payment.  The information the applicant received from his chain of command and their erroneous actions may not serve as the basis for establishing a valid entitlement to reimbursement since the Government cannot be legally bound by the mistakes of its agents.  DFAS’ decision to collect the overpaid funds based on the submission of false receipts has not changed.  Counsel was instructed the applicant’s only recourse was to file a claim in the U.S. Claims Court.

4.  Counsel now states that the premise of the USACIDC ROI is faulty since DFAS officials admit that the applicant was entitled to reimbursement had he submitted proper receipts and documentation.  However, counsel does not provide evidence of this contention.  The USACIDC investigation involved 
interviews, statements, and a review of financial statements, and concluded that there was probable cause to suspect the said offenses had been committed.  Counsel did not provide sufficient evidence to show the applicant did not submit receipts with a fictitious lease agreement for property located in Seminole, FL.
5.  The USACIDC ROI was not flawed; the applicant submitted a fictitious lease agreement which invalidated his claim for reimbursement.  The applicant’s wrongdoing was initially discovered during routine auditing by the Army Internal Review Program.  The CID ROI validated the Internal Review Program’s findings.

6.  If the applicant’s travel vouchers were not being settled on time as he and his counsel contends, there were other legitimate ways he could have addressed the issue.  The applicant’s reliance on bad information from the person with whom he entered into a business venture does not, in itself, create a right to reimbursement where the expense claimed is precluded by law.  The applicant was given the options of requesting remission of his debt through his last servicing finance office, or he could file a claim in the U.S. Claims Court.

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)                                         AR20090009096



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ABCMR Record of Proceedings (cont)                                         AR20090009096



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