IN THE CASE OF:	

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090014517 


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 cancellation of a debt.

2.  The applicant states the following:

	a.  She was mistakenly placed in the Individual Ready Reserve (IRR) by her former unit and as a result reenlisted during a Human Resources Command (HRC) muster for the IRR in August 2007;

	b.  She called her unit prior to attending drills to advise them of her belief she was not in the IRR but was told she was and could join the unit;

	c.  She was present and performed drills for the periods 7- 9 September, 
13-14 October, and 3-4 November 2007 under valid orders which were revoked;

	d.  The revoked Troop Program Unit (TPU) assignment orders resulted in the Defense Finance and Accounting Service (DFAS) initiating a debt against her she has not yet paid; and 

	e.  She later learned she would have to reenlist through an Army recruiter rather than the retention office.


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

* Memorandum for Record 
* DFAS Letter with Account Statements, dated 29 June 2009
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Reassignment Order
* Revocation Order
* Unit Administration Data and Transmittal Letter History
* Electronic Mail (e-mail) Messages 
* DFAS Account Statement, dated 17 July 2009
* Army Board for Correction of Military Records (ABCMR) Letter

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows she initially enlisted in the Illinois Army National Guard (ILARNG) on 6 April 2001.  She was trained in, awarded, and served in military occupational specialty 91W (Health Care Specialist).

2.  On 7 February 2003, the applicant entered active duty as a member of the ILARNG.  She served on active duty for 8 months until 6 October 2003, at which time she was honorably discharged from active duty and discharged from the ILARNG.   

3.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 6 October 2003 shows she was discharged under the provisions of paragraph 5-17, Army Regulation 635-200, by reason of “physical condition, not a disability.”  It also contains an entry in item 9 (Command to Which Transferred) which shows she was returned to the ILARNG.  

4.  The applicant’s Official Military Personnel File contains an NGB Form 22 that shows she was honorably discharged from the ILARNG and as a Reserve of the Army on 6 October 2003, under the provisions of National Guard Regulation  600-200, paragraph 8-26j(1) by reason of being medically unfit for retention.  This document also shows she completed 2 years, 6 months, and 1 day of creditable military service and item 9 (Command to Which Transferred) contains the entry “Not Applicable.”

5.  On 13 August 2007, Army Human Resources Command-St. Louis, Missouri (HRC-St. Louis) issued Orders Number (#) C-08-725185.  These orders directed the applicant's release from the United States Army Reserve (USAR) Control Group and her assignment to the 852nd Medical Command Detachment, Vancouver, Washington, a USAR TPU, effective 7 August 2007.  These orders listed her expiration term of service date as 5 April 2009.  

6.  On 7 November 2007, AHRC–St. Louis issued Orders # C-08-425185R.  These orders revoked the assignment orders (Orders # C-08-725185) dated 
13 August 2007.

7.  On 11 March 2009, a unit Transaction Log History was prepared.  This document shows the applicant performed drills during the following periods while assigned with the 852nd Medical Command Detachment:

* 7 - 9 September 2007
* 13 - 14 October 2007
* 30 - 4 November 2007

8.  On 29 June 2009, DFAS notified the applicant, as she had been previously informed, she owed a debt to the Department of Defense and that payment was due in full.   The DFAS account statement included with the letter shows the applicant’s debt was $1,275.35 at the time.

9.  A DFAS account statement forwarded to the applicant, on 17 July 2009, shows her debt was increased to $1,287.89 as a result of accruing interest.  It also shows her debt was incurred as a result of a payment she received for performing duty beyond her past official date of separation on 6 October 2007 [sic].

10.  The applicant’s unit commander prepared a Memorandum for Record, dated 
5 August 2009, confirming the following:

	a.  The applicant claims she was present at and performed her duties during the drills in question;

	b.  The applicant went through her chain of command to resolve her pay collection issues;

	c.  Pay inquires were forwarded to Fort McCoy for correction, but were not resolved; and 

	d.  The applicant was referred to the ABCMR to obtain relief. 

11.  The applicant provides multiple e-mail messages between USAR Medical Command and Fort McCoy Pay Center personnel that confirm attempts were made to resolve the applicant's debt that resulted due to the issuance of HRC-St. Louis Orders # C-08-725185, on 13 August 2007.


12.  During the processing of this case an advisory opinion was obtained from the Deputy Chief of Staff (DCS), G-1, Headquarters, USAR Reserve Command (USARC).  This opinion states the following:

	a.  The applicant’s 6 October 2003 discharge from active duty voided the remaining obligation on her existing contract.

	b.  HRC-St. Louis erroneously published Orders C-08-725185, dated 13 August 2007, reassigning the applicant to the 852nd Medical Command Detachment.

	c.  HRC-St. Louis revoked the erroneous order upon learning the applicant was not under a valid contract at the time the order was issued.

	d.  The ABCMR should resolve the applicant’s issue by having her sign an antedated contract, reissue an assignment order.

  e.  HRC-St. Louis should submit pay documents for the applicant and publish a discharge order effective after the date of her last drill.

13.  The applicant was provided a copy of the advisory opinion on 19 February 2010, for her comments or rebuttal.  To date, she has not responded.

14.  Army Regulation 37-104-4 (Military Pay and Allowance Policy) provides Department of the Army (DA) policies for entitlements and collections of pay and allowances for active duty Soldiers.  Chapter 32 provides guidance on waiver of United States Claims for erroneous payments of pay and allowances.  It states the Secretary of the Defense may waive U.S. claims for erroneous payments of pay and allowances, including travel and transportation allowances, totaling less than $1,500 or deny waivers in any amount.  A claim of the United States against a Soldier or former Soldier, arising out of an erroneous payment of pay and allowances including travel and transportation allowances may be considered for waiver within 3 years from the date of discovery, when collection of the erroneous payment would be against equity and good conscience, and not in the best interest of the United States.  

15.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) provides the Army policy for processing applications for remission or cancellation of indebtedness to the United States Army.  It states a Soldier's debts to the United States Army may be remitted or cancelled in cases arising from payments made in error to a Soldier.  Paragraph 1-11c contains guidance on cancellation/remission actions by the ABCMR.  It states if the ABCMR approves an application for remission or cancellation of a debt, any payments due will be processed under chapter 32, Army Regulation 37-104-4.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that her debt should be cancelled has been carefully considered and found to have merit.  By regulation, the CG HRC will not consider a request for remission or cancellation of a debt if the debt is incurred while the Soldier is in an active status.  However, a Soldier may apply to the ABCMR if circumstances prevented consideration of all or a portion of the debt for remission or cancellation of indebtedness.

2.  By law and regulation, a debt of $1,500.00 or less due to erroneous payments of pay and allowances may be waived when collection would be against equity and good conscience and not in the best interest of the United States. 

3.  The evidence of record confirms that on 6 October 2003, the applicant was discharged from active duty and discharged from the ILARNG and as a Reserve of the Army.  However, on 7 August 2007, believing the applicant remained in the USAR Control Group, HRC-St. Louis published orders transferring the applicant from the USAR-Control Group to a USAR TPU.  

4.  The applicant attended unit drills and was paid for three separate drill periods (7 days) based on performing this duty.  Upon learning the applicant had been discharged and was not in the USAR Control Group when her assignment to the TPU was made, HRC-St. Louis published orders revoking the assignment on 
7 November 2007.

5.  In view of the forgoing, given the applicant believed she was in a valid status and performed the drills she was paid for, it would not be in good conscience or serve the interest of equity to collect the erroneous payment.  Therefore, it would be appropriate and serve the interest of justice and equity to waive the debt in question.  

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 DFAS waive the debt incurred by the applicant based on the erroneous payment of allowances for Reserve drills performed between 7 August and 5 November 2007 in the interest of equity.




      _______ _  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)                                         AR20090014517



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ABCMR Record of Proceedings (cont)                                         AR20090014517


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