IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100015601 


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, forgiveness of his "$986.62" debt.

2.  The applicant states he was paid on an active duty and Reserve Component (RC) pay system for the same period from 22 May to 30 May 2009.  He should have been accessed on the RC pay system on 22 May 2009 but he was paid the whole month of May 2009.  He adds that he was paid when he was placed in the Warrior Transition Unit at Fort Knox, KY, on active duty orders.  Then one day, his squad leader told him he was no longer on active duty.  His orders were finally issued and were backdated.  However, the effective date of the orders was too far back which caused him to be paid active duty pay for a period of service that he had already been paid under the U.S. Army Reserve (USAR) pay system. He tried to resolve the issue through his squad leader during his service; however, he is now medically retired and he is in a financial bind.  He needs all the help he can get.

3.  The applicant provides:

* Two memoranda from his company commander, dated 2 and 14 April 2010
* A DA Form 3508 (Application for Remission or Cancellation of Indebtedness), dated 10 March 2010
* A self-authored DA Form 2823 (Sworn Statement), dated 10 March 2010
* 
A Defense Finance and Accounting Service (DFAS) Form 702 (DFAS Military Leave and Earning Statement (LES)) for the period "check dated
15 March 2010"
* A letter of indebtedness from DFAS, dated 7 January 2010
* A DD Form 139 (Pay Adjustment Authorization), dated 2 April 2010

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the Regular Army, the applicant enlisted in the Kentucky Army National Guard (KYARNG) on 15 October 2005 and he held military occupational specialty 68W (Health Care Specialist).  

2.  He was discharged on 14 October 2006 and he was transferred to the USAR Control Group (Reinforcement).  He was further reassigned to a troop program unit, the 5010th Army Hospital in Louisville, KY.  He held the rank/grade of specialist (SPC)/E-4.

3.  On 7 May 2007, he developed a sore neck and low back pain after an Army Physical Fitness Test.  His injury was determined to be in the line of duty.  He underwent treatment and/or examinations and he was subsequently recommended for entry into the Army's Physical Disability Evaluation System.

4.  On 24 June 2008, the U.S. Army Human Resources Command (HRC), St. Louis, MO, published Orders A-06-811758, ordering the applicant to active duty for a period of 179 days with assignment to the Warrior Transition Unit, effective 29 May 2008, for the purpose of active duty medical extension (ADME).

* On 20 October 2008, HRC amended his period of active duty from 179 days terminating on 23 November 2008 to 358 days terminating on 21 May 2009
* On 2 March 2009, HRC amended his period of active duty from 358 days terminating on 21 May 2009 to 537 days terminating on 16 November 2009 
* On 6 October 2009, HRC amended his period of active duty from 537 days terminating on 16 November 2009 to 716 days terminating on 14 May 2010
* On 11 March 2010, HRC amended his period of active duty from 716 days terminating on 14 May 2010 to 740 days terminating on 7 June 2010
* On 18 March 2010, HRC amended his period of active duty from 740 days terminating on 7 June 2010 to 667 days terminating on 27 March 2010

5.  On 7 January 2010, by letter, DFAS notified the applicant that he was previously notified of the debt he owed to the Government and that this was his third notice on his delinquent debt.  The debt was caused by an end of month payment of $1,966.24 on 30 May 2009 and that this payment was not posted to his account.  After making incremental payments, he was left with a $986.63 remaining balance owed to the Government.

6.  On 3 March 2010, he underwent a physical evaluation board (PEB) that determined his medical condition prevented him from performing the duties required of his specialty and/or grade and recommended his permanent disability retirement.

7.  On 15 March 2010, he submitted a DA Form 3508 requesting remission or cancellation of his debt in the amount of $986.63 that was incurred in May 2009.  In connection with this application, he submitted a DA Form 2823 wherein he stated that he received active duty pay while in a Reserve status and that it took a long time for someone to figure this out.  The servicing finance office began taking the money out of his pay in increments which put him and his family in a financial hardship.

8.  He was honorably retired by reason of permanent disability on 26 March 2010 in the rank/grade of SPC/E-4 and he was placed on the Retired List on 27 March 2010.

9.  On 2 April 2010, DFAS initiated a DD Form 139 against him in the amount of $986.63 after he failed to repay his just debt.

10.  On 2 and 14 April 2010, by memoranda, his former company commander stated the applicant had an outstanding debt which he owed to the Government.  He made attempts to have this debt stopped because he was continuously being overpaid while on active duty.  The immediate commander recommended remission of the applicant's debt.

11.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) outlines the policies and guidance for remission or cancellation of indebtedness to the U.S. Army.  It allows all Active Army Soldiers and those in the Active Guard Reserve program to submit an application for remission or cancellation of indebtedness to the U.S. Army.  A Soldier’s debts to the U.S. Army may be remitted or canceled on the basis of this regulation 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 on active duty as a Soldier; 

debts acknowledged as valid; debts for which an appeal has been denied; debts for which a waiver has been denied; or debts established as a result of financial liability of investigation of property loss.  Soldiers must make sure that their financial accounts are correct.  They must review their monthly LES and report errors or discrepancies to the commander and the finance office.  Soldiers must be aware of and take steps in resolving issues with entitlements not stopped at the proper time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a pay and/or allowance to which he was not entitled or an overpayment that was in excess of that to which he was entitled.  Although he appears to have received this payment in good faith and without prior knowledge or reason to suspect an error, when the error was discovered he was so notified and repaid a portion of that overpayment in increments.

2.  Furthermore, he received three notifications from DFAS regarding this debt, the third of which was in January 2010.  He had an equal responsibility in ensuring his pay was correct.  The earliest he took action was on 15 March 2010, a week prior to his retirement.  There is no evidence that repayment of this debt affected the welfare of the applicant and/or his family members, or caused him or his family to suffer unduly.

3.  Soldiers must make sure that their financial accounts are correct.  He received an overpayment and is requesting this Board to forgive his debt but has not shown any hardship, injustice, or a reason why his debt should be forgiven.  Therefore, there is insufficient evidence to grant him 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)                                         AR20100015601



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ABCMR Record of Proceedings (cont)                                         AR20100015601



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