IN THE CASE OF:	  

		BOARD DATE:	    18 January 2011

		DOCKET NUMBER:  AR20100018939 


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 reconsideration of his earlier petition requesting cancellation of his $44,132.65 debt and a refund of all monies already collected to satisfy the debt; or in the alternative, that the receipts and documentation he submitted be accepted as proof of his entitlement to the money (sic).  

2.  The applicant states he knows he unknowingly filed his claims wrong but he should have the opportunity to re-file or to be granted a waiver of this debt since the money was owed to him.  He claims he is a husband and father of two and he has to be able to provide for his family while he is deployed for the next year.  He states "a debt collection of two-thirds makes me unable to provide for my family or pay my expenses.  He claims to believe this has been a great injustice to him and he has always been a loyal Soldier and has served his country to the fullest.  

3.  The applicant provides a Congressional Inquiry with a self-authored letter to his Member of Congress and the original Army Board for Correction of Military Records (ABCMR) Record of Proceedings in support of his reconsideration request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090009096, on 15 October 2009.  

2.  During the original review of the case, the Board found the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) investigation that determined the applicant committed the offenses of making a false official statement, larceny, fraud, and wire fraud was not flawed, and that the applicant submitted a fictitious lease agreement which invalidated his claim for reimbursement.  The Board further concluded the applicant’s options were to request remission of his debt through the last serving finance office, or to file a claim in the U.S. Claims Court.  

3.  The applicant now provides a self-authored letter to his Member of Congress as new evidence that requires consideration.  In his letter, he states he has applied to this Board and has requested a waiver of indebtedness from the Army and both requests were denied.  He further states his only recourse is to file a claim with the U.S. Claims Court, but his attorney fees would be $35,000 to $50,000.  He finally argues collection of this debt would render him unable to support his family while he is deployed for the next year and requests his Member of Congress look into his situation.  

4.  The applicant’s record shows he served in the Regular Army (RA) and U.S. Army Reserve (USAR) in an enlisted status from 9 April 1997 through 
20 March 2008.  It further shows he was appointed a second lieutenant in the USAR on 21 March 2008, and he was promoted to first lieutenant on 
19 November 2009.  He currently remains in an active status in the USAR.

5.  As a result of an Army Internal Review Program review, the applicant's travel voucher settlement claim was identified as possibly being fraudulent.  A CID investigation resulted in a determination that the applicant committed the offenses of making a false official statement, larceny, fraud, and wire fraud to receive a reimbursement he was not entitled to; and on 19 September 2008, the CID concluded there was probable cause to believe the applicant committed the said offenses.  

6.  On 5 December 2008, the Defense Finance and Accounting Service (DFAS) notified the applicant that based on his Temporary Change of Station (TCS) orders, he had received a total of $70,271.50 in entitlements and travel advances; and upon completion of the processing of his claim, it was determined he was overpaid the amount of $44,132.65.  



7.  On 17 March 2008, after numerous communications between DFAS and the applicant’s counsel, DFAS notified the applicant’s counsel that the applicant had submitted false rental receipts from February 2006 through March 2007 for lodging reimbursement and that based on current Comptroller General decisions, the lodging portion of the claims had been tainted and had to be collected back.  The applicant’s counsel was further informed under the same Comptroller General decisions that the applicant could not be reimbursed even if he later resubmitted proper documentation.  

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for reconsideration submitted through his Member of Congress has been carefully considered.  However, there is no new evidence or information provided in this request that would support amendment of the original Board decision in this case.  

2.  By law and regulation, the criteria for waiving an erroneous payment require that the erroneous payment arose from an administrative error with no indication of fraud, misrepresentation, or lack of good faith on the part of the member. 

3.  In this case, the CID investigation clearly shows the applicant committed the offenses of making false statements, larceny, fraud and wire fraud, and the applicant has failed to provide independent evidence refuting these findings.  As a result, it would not be appropriate to grant 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 to amend the decision of the ABCMR set forth in Docket Number AR20090009096, dated 15 October 2009.  




      _______ _  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)                                         AR20100018939



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ABCMR Record of Proceedings (cont)                                         AR20100018939



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