BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090020411 


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 remission or cancellation of indebtedness resulting from an overpayment caused by an error in the calculation of his leave balance upon demobilization in 2006.

2.  The applicant states that the finance representative argued with him with respect to the amount of leave he had accrued and that he explained to the representative that he did not accrue 45 days at the time.  A debt was ultimately initiated against him for excess leave.  He would like his case reviewed as he believes he should not have to pay for someone else's error.  He is currently unemployed and it is very hard for him to make monthly payments of this debt.

3.  The applicant provides the following documents:

* A copy of a DA Form 3508-R (Application for Remission or Cancellation of Debt), dated 2 November 2007
* A copy of a U.S. Army Human Resources Command (USAHRC)-STL memorandum, dated 2 November 2007
* A copy of a National Guard Bureau (NGB) Notice of Indebtedness, dated 18 August 2006
* A copy of his DA Form 31 (Request and Authority for Leave) and a copy of his Reserve Leave Report, date 8 May 2006
* A self-authored statement, dated 7 August 2007
* Copies of his NGB Forms 22 (Report of Separation and Record of Service), dated 1 November 2006 and 1 November 1983
* A copy of his NGB Form 23A (Army National Guard Retirement Points History Statement), dated 25 January 2007
* A copy of his discharge orders, dated 19 January 2007

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant's records show he enlisted in the Texas Army National Guard (TXARNG) on 28 November 1987.  He held military occupational specialties 19K (M-1 Armor Crewmember) and 44B (Metal Worker), served through multiple extensions or reenlistments in the ARNG, and attained the rank of sergeant first class (SFC)/E-7.

2.  On 29 January 2005, he was ordered to active duty in support of Operation Noble Eagle and he was assigned to the 1st Squadron, 221st Cavalry, Las Vegas, NV.

3.  On 8 May 2006, he submitted a DA Form 31, requesting transition leave from 13 May 2006 to 2 July 2006 as follows:  Travel date to home station on 13 May 2006; demobilization from 14 May 2006 to 16 May 2006, and 47 days of leave from 17 May 2006 to 2 July 2006. 

4.  He was honorably released from active duty on 2 July 2006 to the control of his ARNG unit.

5.  On an unknown date in 2006, by memorandum, the NGB notified him that he had been found indebted to Government in the amount of $6,370.97 for 32.5 days of excess leave.  He was also told action would be taken to collect this debt.

6.  On 22 July 2006, by memorandum to the NVARNG Financial Manager, he indicated that he would request a waiver of this indebtedness and subsequently submitted a DA Form 3508-R requesting a remission of his debt.

7.  On 19 January 2007, the Office of the Adjutant General, NVARNG, published Orders 019-605 discharging him from the ARNG and transferring him to the Retired Reserve. 

8.  On 16 May 2007, by memorandum, his former company commander concurred with his request and indicated that his unit had had numerous issues with incorrect information provided to his Soldiers upon demobilization.

9.  On 7 August 2007, he submitted a self-authored statement wherein he stated that upon demobilization, he was given paperwork that showed he had accrued 47 days of leave.  He believed this was incorrect because he had previously cashed in 30 days of accrued leave.  He pointed out the discrepancy to the representative but he was told the issue would be ultimately corrected.   

10.  On 19 October 2007, the NVARNG initiated a DD Form 139 (Pay Adjustment Authorization) authorizing the Defense Finance and Accounting Service (DFAS) to charge the applicant's account with $5,960.50 worth of debt generated as a result of an overpayment of his leave balance at the time of his demobilization.

11.  On 2 November 2007, by memorandum, the Chief, Reserve Pay Support Branch, USAHRC-STL disapproved his request for remission and advised him to contact DFAS for a proration of the remaining owed balance.

12.  An advisory opinion was obtained on 11 May 2010 from DFAS-Indianapolis, IN, in the processing of this case.  An official at the Directorate of Debt and Claims Management recommended denial of the request for remission.  He stated that at the time he was released from active duty and returned to the ARNG in July 2006, the applicant stated that the number of leave days remaining on his pay was in error and the lump sum leave payment was more than he was due.  It was not until after his release from the ARNG that the error was discovered and a debt was reported.  As he was aware, he received more money than he was entitled to.  Therefore, the debt is valid and should be recouped.  

13.  He was provided with a copy of this advisory opinion and submitted a rebuttal on 24 May 2010, wherein he stated that at the time of his demobilization, he advised the finance official that he only had 17 days of leave but the official insisted that the leave balance was 45 days.  The bottom line is that he is currently unemployed and the debt puts a greater financial hardship on him and his family.  He does not have any money to pay it back.  Additionally, he does not understand why he is paying interest as he was already taxed on this debt.  

14.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members) states in pertinent part, that indebtedness to the U.S. Army may be remitted or cancelled if the debt is considered unjust, a hardship, or causes undue suffering.  Further, it may be remitted or cancelled if the debt is the result of payments made in error, made in excess of authorized allowances, and the debt is acknowledged as valid.  An injustice or hardship determination takes into consideration the Soldier's awareness of policy and procedures, past and present specialty, rank, years in service, prior experience, and the Soldier's contribution to the indebtedness by not having the situation corrected.  A debt will not be remitted or cancelled under Title 10, United States Code (USC), section 4837, or under Title 32, USC, section 710(c), when a Soldier is retired, whether the debt occurred before or after retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his indebtedness resulting in an error in his leave balance upon demobilization in 2006 should be cancelled.

2.  The evidence of record shows he was ordered to active duty on 29 January 2005 in support of Operation Noble Eagle.  Prior to his demobilization, he requested 47 days of transition leave.  However, he did not have sufficient leave accrued to cover this period.  He appears to have pointed this out to the finance representative upon mobilization but he still took the leave anyway.  A debt was subsequently established as a result of his taking excess leave.  

3.  The applicant was a SFC/E-7.  He knew or should have known that he received more money than he was entitled to.  Notwithstanding his current employment situation and the financial hardship, the fact remains that he received money that he was not entitled to receive.  He should not benefit from any entitlement he did not earn and should not be allowed to receive a free benefit that other Soldiers pay for.  This debt should be recouped.  

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)                                         AR20090020411



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ABCMR Record of Proceedings (cont)                                         AR20090020411



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