IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100010811 


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 he be reimbursed $7170.34 for recoupment of a debt. 

2.  The applicant states the Defense Finance and Accounting Service (DFAS) took pay out of his Leave and Earnings Statements (LESs) for repayment of a debt starting in May 2005.  DFAS was never able to tell his unit clerks in writing the nature of the debt but the unit clerks told him it was for taking 2 weeks excess leave while he was on active duty.  He contends he never took excess leave and DFAS has never shown what days they considered to be excess leave.  He indicates DFAS took $7170.34 from his pay from May 2005 to January 2006.

3.  The application also states even if he did take 2 weeks excess leave that is too much pay and he should be reimbursed $7170.34 because he never took excess leave.  He claims his unit clerks think DFAS counted his convalescent leave as regular leave.  While he was on medical hold the unit commander was very good about ensuring they had actual leave due to them since the Reserve LESs at the time were notorious for having the incorrect entries for leave due.  They had to get clearance from the local finance before the unit commander would approve leave.  Even if DFAS can show excess leave they cannot show that it was worth $7170.34.

4.  The applicant further states his leave forms show he took 30 days convalescent leave after he was transferred to the Community Based Health 


Care Organization, Arkansas.  Later, he was transferred to Brooke Army Medical Center and was in their Medical Hold unit.  Following his discharge from active duty, he was reassigned to a Reserve slot at U.S. Army South Headquarters.  While at this Reserve unit he started getting his LESs with "No pay due" and the like for repayment of a debt allegedly due to taking excess leave.  He points out a "Leave Master" he obtained while he was trying to show he did not take excess leave has mistakes on it.  It shows he took 19.5 days leave; however, he can account for 30 days, not 19.5 days.  One part of the form states he earned 
33 days of leave.  He does not recall receiving 13.5 days of "sold" leave. 

5.  The applicant provides:

* Personal statements, dated 2 March 2010, 21 May 2010, 26 March 2010, and 8 October 2010
* DFAS appeal, dated 18 June 2008
* Emails from DFAS
* Letters, dated 21 May 2009 and 2 March 2010, to the Army Review Boards Agency
* DFAS letter, dated 8 June 2009, with pay computation documentation
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Active duty orders
* Leave forms
* Leave Master
* LESs

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed as a second lieutenant in the U.S. Army Reserve on 7 July 1986 and was subsequently appointed in the Louisiana Army National 


Guard (LAARNG) on 7 November 1986.  He completed the Judge Advocate General Officer Basic course in September 1994.  He was promoted to major on 27 March 2000.

3.  On 22 February 2004, he was ordered to active duty in support of Operation Enduring Freedom.  Records show he was on convalescent leave from 27 July 2004 to 25 August 2004.  Subsequently, he was placed in a medical hold unit at Brooke Army Medical Center.  He was honorably released from active duty for completion of required active service on 13 April 2005.  On 1 October 2006, he was assigned to the Retired Reserve.

4.  In April 2008, he petitioned the ABCMR for reimbursement of a debt ($7170.34).  In June 2008, his case was closed by letter and the applicant was instructed to exhaust his administrative remedies by requesting a financial audit from DFAS. 

5.  In June 2008, he submitted a request to DFAS for a financial audit of a recoupment made against him starting in May 2005.  On 8 June 2009, DFAS responded and informed the applicant a financial audit of his leave days had been completed and it was determined he was due a refund in the amount of $180.65.  The applicant disagreed with the DFAS settlement.  Subsequently, DFAS responded and informed the applicant his claim had been audited twice by Reserve pay and they would not do it again.  It was suggested the applicant petition the ABCMR. 

6.  He provided DFAS documentation which shows his indebtedness for components of pay (basic pay, pay and allowances, excess leave taxable penalty, excess leave nontaxable penalty, and lump sum leave) totaled $7521.70 for the period December 2004 to June 2005.  This documentation shows debt collection amounts taken from his LESs during the period 6 May 2005 to           22 February 2006 totaled $7455.05 (including a debt cancellation of $66.64).  

7.  DFAS records show the following debt collections in 2005 and 2006 (totaling $7,521.70):

* Overpayment of basic pay and pay and allowances for 14-15 April 2005 - $484.45
* Leave period from 17 March 2005 to 1 April 2005 - $4,344.37
* Reimbursement for payment for unit training assemblies for 25-26 June 2005 - $791.16
* Half day excess leave - $121.11


* Overpayment of lump sum leave (he was overpaid for 8.5 days) - $1,681.22
* Half day basic pay - $98.89 

8.  DFAS records also show he received a lump sum payment for 13.5 days of leave in May 2005.  Subsequently, he took 8 days of leave and the leave was not posted to his account in a timely manner.  When the leave was posted, the system generated an excess leave period for debt collection of $1,681.22. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is unaware of the nature/specifics of his debt.  However, the DFAS documentation provided by him shows his indebtedness was for components of pay (basic pay, pay and allowances, excess leave taxable penalty, excess leave nontaxable penalty, and lump sum leave) for the period December 2004 to June 2005.    

2.  He contends he never took any excess leave.  DFAS records show an excess leave period was generated by the system because he took 8 days of leave after receiving a lump sum payment for 13.5 days of leave.  Since he did not have any leave on the books, when the leave was finally posted to his account, an excess leave period was generated for debt collection. 

3.  There is no evidence of record and the applicant has provided no evidence which shows his debt(s) were improperly imposed.  DFAS properly recouped this debt from him and there is no basis for granting the requested relief.

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)                                         AR20100010811





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ABCMR Record of Proceedings (cont)                                         AR20100010811



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