IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110004942 


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 or remission of his indebtedness with the Department of Defense.

2.  He states that while he was serving on active duty in Afghanistan, the Defense Finance and Accounting Services (DFAS) made an error in his pay.  At the time DFAS paid him more than he was due.  He paid taxes on the monies he received and monies continued to be deducted until he had to retire based on a knee injury.  He cannot afford to pay this debt since he has retired.  He also did not realize an error had taken place until after he retired and he could not afford to repay the debt.  He is being harassed by a collection agency contracted by DFAS.  He served proudly with the military and asks that this error be removed.

3.  He provides a copy of a letter from DFAS with enclosures.

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’s military records show he was appointed in the Alabama Army National Guard (ALARNG) as a second lieutenant on 24 July 1997, with prior U.S. Marine Corps enlisted service.  

3.  He was separated from the ALARNG on 1 August 2001 and he was transferred to the U.S. Army Reserve (USAR).  

4.  Orders Number 069-2207 were published by Headquarters, U.S. Infantry Center, Fort Benning, GA, on 10 March 2005, releasing him from the active duty due to a return from deployment/completion of required active duty on 6 April 2005.

5.  On 26 October 2007, he was issued a Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter) based on his completion of at least 15 years of qualifying service and physical disability not incurred in the line of duty.

6.  He was transferred to the Retired Reserve as a captain on 31 October 2007.

7.  In a letter, dated 11 January 2011, the Debt and Claims Manager, DFAS, Special Actions Branch, responded to the applicant’s inquiry disputing his indebtedness with the Department of Defense.  The DFAS official stated:

   a.  that upon review of his account, they determined his debt in the principal amount of $14,795.01 remained valid.  DFAS added interest, penalty, and administrative fees totaling $1,198.69.  They received payments totaling $8,764.46, bringing his balance due to $7,229.24.  Since his account was at the commercial collection agency, Pioneer Credit Recovery (PCR), that agency could have added additional fees in accordance with the contract with the Department of Treasury.
   
   b.  the Debt and Collection Act of 1982 and the Debt Collection Improvement Act of 1996 also authorized the reporting of past due debts to credit bureaus, commercial collection agencies, and the Department of the Treasury Offset Program.  He could contact PCR directly regarding their license to collect debts in the state of Alabama.
   
   c.  his debts consisted of two parts.  The first part, in the amount of $14,632.03, was for the recovery of pay and allowances for the period 7 April 2005 through 15 July 2005.  He was erroneously paid past his release from active duty date of 6 April 2005, thus causing the indebtedness.  The second part, in the amount of $162.98, was for the collection of meals from 18 May 2007 through 8 June 2007.
   
   d.  they were enclosing copies of his Master Military Pay Account for the periods of July through September 2005, April through June 2005, and April through June 2007, which showed those debts for his information and review.  They had also enclosed a spreadsheet showing the original amount of his debt as $22,941.20.  His former activity withheld the amount of $8,146.19 from his Reserve pay, resulting in $14,795.01 being transferred to DFAS for collection after his date of separation of 31 October 2007.
   
   e.  since those debts were referred to DFAS for collection by his former activity, they had no authority regarding cancellation or reduction.  A possible avenue of remedy could be for him to file an Application for Correction of Military Record (DD Form 149) and send it to the ABCMR.  
   
   f.  they regretted that they were unable to provide him with a more favorable response to his inquiry.  He was invited to contact the PCR to inquire about his account status or establish a repayment agreement.

8.  Pubic Law 104-134, section 31001, Debt Collection Improvement Act of 1996, provides for maximized collections of delinquent debts owed to the Government by ensuring quick action to enforce recovery of debts and the use of all appropriate collection tools.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, while serving as a member of the USAR, was released from active duty (deployment) on 6 April 2005.  He was transferred from the USAR to Retired Reserve on 31 October 2007 with a 
15-year retirement.  

2.  The evidence of record shows he was advised by DFAS on 11 January 2011 that his debt in the principal amount $14,795.01 remained valid.  He was also advised that the debt in the amount of $14,632.03 was for the recovery of pay and allowances for the period of 7 April 2005 through 15 July 2005 as a result of erroneously payment past his release date of 6 April 2005.  There is no evidence that he was not aware of such overpayment at the time.

3.  He requested relief from the debt because he alleges it is in error.  With respect to his claim, there is no evidence in the record and he did not provide any substantiating evidence that shows that the debt is in error and that he was billed in error by the collection agency.  He was advised of the amount due, the steps he could take to inquire about his account status, or establish a repayment agreement.  There is insufficient evidence to support absolving him of the debt. 

4.  Although he contends he cannot afford to pay this debt, he fails to provide sufficient convincing evidence that repayment of the debt in question would present an undue financial burden on him.  Thus, given that a debt was incurred based on overpayment of pay and in fairness to others in similar situations, the mitigating factor of him being unable to repay the debt alone provides an insufficient equity basis to support remission or cancellation of his debt.  

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)                                         AR20110004942





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ABCMR Record of Proceedings (cont)                                         AR20110004942



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