IN THE CASE OF:	   

		BOARD DATE:	  2 November 2012

		DOCKET NUMBER:  AR20110006152 


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:

	a.  Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect his total service in the Army National Guard (ARNG) and the Regular Army (RA);

	b.  Amendment of his record to show his bad conduct discharge (BCD) was upgraded to a general discharge (GD); and 

	c.  Cancellation/remission of his debt to the U.S. Army.

2.  He states in 2001 he had justification and other mitigating factors involving matters under the Uniform Code of Military Justice (UCMJ) and Face Book.  However, he was prohibited from submitting this evidence during his special court-martial.  He was ordered by officers involved in his court-martial to keep quiet and he feels in all fairness, these matters should be opened for the Army to review.

3.  He adds he has been dealing with a serious pay issue from the years 2001 through 2004.  He has approached every avenue possible to get this matter resolved; however, he has met a lot of resistance from the Defense Finance and Accounting Service (DFAS); offices at Fort Knox, KY; and the Department of Defense (DOD).  All parties involved show that he was in a no pay status at the 


time he received monies.  He has no record of being in a no pay status and there is no evidence to support the government’s claim that he was in a no pay status.

4.  He provides:

* Several documents from his record of court-martial
* His DD Form 214 with a character of service of "bad conduct"
* A packet from DFAS
* An Army Discharge Review Board (ADRB) docket
* A copy of his entire military record
* Various civilian court documents
* Several documents from his post-military service

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 enlisted in the ARNG on 19 January 1990.  He entered his initial active duty for training (IADT) on 30 March 1990 for training in military occupational specialty (MOS) 19K (M1 Armor Crewman).  He was released from IADT on 12 July 1990 and he was transferred to an ARNG unit.  He completed
3 months and 13 days of net active service this period.

3.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period 19 January 1990 through 1 December 1994 shows he served 4 years, 10 months, and 12 days of net service this period with no prior active Federal service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 1 December 1994 for completion of his Reserve obligation.

4.  He again enlisted in the ARNG and he served from 7 February 1995 through
20 December 1998.  His periods of service in the ARNG are properly credited.  
Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

5.  He enlisted in the Regular Army on 21 December 1998 and he served in the same MOS as previously awarded.

6.  On 26 October 2001, the applicant was tried by a special court-martial.  He pled guilty and he was found guilty of the following offenses:

* Desertion
* Absence without leave (AWOL)
* Disrespect toward a superior commissioned officer
* Violating a general order or regulation
* Assault consummated by a battery
* Aggravated assault with a dangerous weapon

7.  He was sentenced to reduction to the rank/grade of private (PV1)/E-1, forfeiture of $500.00 pay per month for 4 months, confinement for 4 months, and discharge with a BCD.

8.  On 26 October 2001, the sentence was approved and ordered executed except for the portion that pertained to his BCD.

9.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record -
Part II) shows he was in military confinement from 19 September through
27 December 2001.  Item 35 (Record of Assignments) shows he was placed on excess leave status on 28 December 2001.

10.  The U.S. Army Court of Criminal Appeals affirmed the applicant’s court-martial findings and sentence on 2 May 2003.

11.  Special Court-Martial Order Number 127, issued by Headquarters, U.S. Army Armor Center, Fort Knox, dated 5 September 2003, show the BCD was ordered executed.

12.  Accordingly, on 20 February 2004 the applicant was discharged with a BCD after completing 4 years, 10 months, and 20 days of creditable active service.  His DD Form 214 for this period shows the following entries:

* item 12d (Total Prior Active Service) - "0000 00 00" 
* item 12e (Total Prior Inactive Service) - "0000 02 11"


* item 18 (Remarks) - “Excess Leave (Creditable for all purposes except pay and allowances) 785 days:  20011228 - 20040220//”

13.  The period between his release from military confinement on 28 December 2001 and his date of discharge on 20 February 2004 is 785 days or 2 years, 
1 month, and 24 days.

14.  A letter from DFAS, dated 8 December 2010, shows an inquiry was made by the applicant’s Member of Congress (MOC) pertaining to his remission of debt packet.  It was noted that upon review of his file, DFAS determined that his concerns fell under the purview of the U.S. Army Human Resources Command (AHRC) and as such, the applicant needed to complete a DA Form 3508-R (Application for Remission or Cancellation of Indebtedness) and submit his request to the Special Actions Branch of AHRC.  A copy of this packet is not available for review.

15.  A debt collection form shows the applicant owes $28,882.32 for full military pay and entitlements he collected while in the following duty statuses:

* AWOL
* Desertion
* Military confinement
* Ordinary (Excess) leave

16.  On 17 November 2010, the applicant petitioned the ADRB for an upgrade of his discharge based on mitigating circumstances.  On 22 February 2011, the applicant and counsel appeared before a personal appearance hearing in Dallas, TX.

17.  After carefully examining the applicant's record of service during the period under review, hearing his testimony, and considering the analyst's recommendation and rationale, the ADRB determined that clemency is warranted based on his length and quality of service to include his post-service accomplishments and as a result it is inequitable.  Accordingly, the ADRB voted to upgrade the applicant's characterization of service to general, under honorable conditions.  On 10 March 2011, the applicant was notified of the ADRB's decision.  On 9 June 2011, the applicant's bad conduct DD Form 214 was voided and a new DD Form 214 was issued reflecting his GD.

18.  A review of his Official Military Personnel File (OMPF) in the interactive Personnel Electronic Records Management System (iPERMS) does not show a 


copy of the applicant's new DD Form 214 depicting his upgraded discharge to a GD.

19.  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.

20.  This regulation also provides guidance for Soldiers who have been released from an active status to include the ARNG/ARNG of the United States and U.S. Army Reserve who have incurred a debt to the U.S. Army.  The objectives are to remit or cancel debts to the U.S. Army that are considered to be unjust and to end hardship or undue suffering.  An enlisted Soldier's debts to the United States 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 as an officer of the U.S. Army; debts acknowledged as valid; debts for which an appeal has been denied; debts for which waiver has been denied; and debts established in a report of survey.

21.  Army Regulation 600-4 also states indebtedness to the U.S. Army will not be remitted or canceled under the following conditions: 

	a.  when a Soldier's pay is not reduced promptly in connection with the forfeiture of pay imposed by a court-martial sentence or under Article 15 of the UCMJ;

	b.  after discharge unless the Soldier has reenlisted;

	c.  if a Soldier will receive less than an honorable discharge at time of separation;

	d.  when a member of the Reserve Component is not on full-time active duty;

	e.  when a Soldier is retired, whether the debt occurred before or after retirement;

	f.  when a Soldier is held liable for damage or loss of property to another branch of service;


	g.  when debts are due to loss of public funds obtained or converted to own use through fraud, larceny, embezzlement, or other unlawful means; or

	h.  when debts are due to fines imposed by court-martial sentence.

22.  Title 10, U.S. Code, section 876a states that, under regulations prescribed by the Secretary concerned, an accused who has been sentenced by court-martial may be required to take leave pending completion of action under this subchapter if the sentence, as approved, includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge.

23.  The Department of Defense Financial Management Regulation, Volume 7A, paragraph 010301F states that, under regulations prescribed by the Secretary of the Military Department concerned, members sentenced to unsuspended dismissal or unsuspended dishonorable or bad conduct discharge by court-martial may be required to take leave pending review of their conviction as provided by Article 76a, UCMJ.  Such leave shall be charged against any accrued leave to the member’s credit on the day before the day such leave begins.

24.  The Fiscal Year 2007 National Defense Authorization Act (NDAA) expanded the Secretary of the Army’s authority to cancel or remit a debt incurred by a person while serving on active duty since 7 October 2001 when to do so is in the best interest of the United States.  This authority is to be exercised pursuant to regulations prescribed by the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to have his record properly reflect his upgraded discharge was carefully considered and has merit.

2.  On 10 March 2011, the ADRB upgraded his BCD to a GD.  As a result, on
9 June 2011, a new DD Form 214 was issued to reflect this upgraded discharge to a GD.  However, it is not properly filed in his iPERMS record.  Therefore, it would be appropriate to add his new DD Form 214 to his iPERMS record.  Additionally, a copy of this DD Form 214 will be provided to the applicant with these Proceedings.

3.  The applicant's request to have his prior active and prior inactive service time reflected on his DD Form 214 is valid.  He had prior service in the ARNG, and none of that service is shown on his DD Form 214.  It should be included.

4.  The applicant also contends that he has no proof he was ever in a nonpay status and there is no evidence to support the government's claim that he was.  Therefore, his debt to the U.S. Army should be forgiven.

5.  By law, the applicant was required to take excess leave pending the results of his appellate review.  The available evidence shows that the applicant continued to receive his full military pay and allowances during periods he was not entitled to receive pay and allowances.  Accordingly, when DFAS discovered the error a debt collection was established.

6.  The period in question covers 2 years, 1 month, and 24 days and resulted in a debt of $28,882.32 owed to the U.S. government.  

7.  Although the Fiscal Year 2007 NDAA expanded the Secretary of the Army’s authority to cancel or remit a debt incurred by a person, the applicant has not provided any mitigating circumstances or convincing argument that would explain why he continued to accept payments for service not served and why it would be in the best interest of the United States to do so.

8.  It is reasonable to presume that the applicant would have been informed that excess leave is in a no pay status prior to being placed in an excess leave status.  However, even if this did not occur for some reason, the applicant would have known that he would only be paid while he was reporting for duty or using the leave he had accrued.  It is not reasonable to believe that he would think he was on a pay status while on excess leave for over 2 years.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  adding his new DD Form 214 reflecting a general discharge to his iPERMS record; and

   b. having the U.S. Army Human Resources Command Veteran's Inquiry Branch review and calculate his prior ARNG service and amend his DD Form 214 appropriately.  

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to remitting or canceling his debt to the U.S. Army.




      ____________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)                                         AR20110006152



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ABCMR Record of Proceedings (cont)                                         AR20110006152



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