BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120002313 


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 remission of a $2,850.59 debt to the government.   

2.  The applicant states, in effect, he was not allowed to out-process prior to the discharge date on his orders.  He states individuals are normally allowed 10 days for out-processing.  He claims he had to return on his own time to out-process and receive his DD Form 214 (Certificate of Release or Discharge from Active Duty), which required many trips.  

3.  The applicant provides a self-authored statement, a debt waiver request packet, and the Defense Finance Accounting Service (DFAS) debt denial letter in support of his request.  

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 commissioned a second lieutenant and served on active duty in the Regular Army from 4 May 1978 through 13 September 1985.  On     14 September 1985, he entered the U.S. Army Reserve (USAR) and continuously served in the USAR through his retirement. 

3.  On 6 August 2004, while a member of the USAR, he was ordered to active duty.  He served for 3 years, 2 months, and 25 days until being honorably released from active duty and returned to the USAR on 30 October 2007.  

4.  A DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 5 July 2007, on file in the applicant’s record shows the applicant elected not to complete separation out-processing at that time because he noted he was going back on active duty. 

5.  On 1 June 2008, the applicant was transferred to the Retired Reserve and on 10 April 2012, he was placed on the Retired List at age 60.  

6.  The documents related to the applicant’s debt are not on file in the applicant’s record.  The applicant provides a letter from the DFAS Chief, Remissions and Waivers Branch, dated 24 October 2011, which responded to his request for a waiver of his $2,773.74 debt established in his pay account after the time of his separation on 31 October 2007.  DFAS denied the applicant’s waiver request citing the applicant’s utilization of 6.5 days of leave in excess of his accrued leave balance.  The waiver denial also indicated that the applicant as a senior officer with over 30 years of military experience reasonably should have kept track of his leave.  

7.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the United States Army.  Applications must be based on injustice, hardship, or both.  This includes debts caused by errors in pay to or on behalf of a Soldier.  Paragraph 1-12 contains guidance on determining injustice or hardship and states these determination will be based on the following factors:

* The Soldier's monthly income and expenses
* The Soldier's contribution to the indebtedness to the U.S. Army by not having the situation corrected
* Additional income or assets (for example, spouse's salary, savings account, and bonds)

8.  The regulation further states the application must contain evidence regarding the following additional factors which are considered in determining injustice:
* The applicant did not know, and could not have known, of the error
* The applicant inquired of a proper authority and was told that the payment was correct
* Repayment will cause him a hardship because of excessive monthly expenses due to living in a high cost area, living apart from family members, the number and age of family members, medical and dental bills that cannot be reimbursed, and other unusual expenses

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for cancellation or remission of the debt he incurred as a result of the utilization of leave beyond his accrued balance has been carefully considered.  However, the evidence provided with the application is not sufficient to support this claim.  

2.  The evidence of record confirms the applicant used 6.5 days of leave in excess of his accrued leave balance.  Although he may have not been provided sufficient out-processing time, it is clear the applicant knew or should have known he did not have sufficient accrued leave to cover the entire period of leave he took in conjunction with his separation from active duty.  Accrued leave is documented monthly in leave and earnings statements and although there may have been errors made during out-processing this does not excuse the applicant from culpability in using leave in excess of his accrued leave balance.  
3.  Further, the applicant fails to provide sufficient convincing evidence that repayment of the debt in question would present an undue financial burden on him and/or his family.  As a result, there is 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)                                         AR20120002313



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ABCMR Record of Proceedings (cont)                                         AR20120002313



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