IN THE CASE OF:	  

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120021583 


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, remission/cancellation of a valid debt resulting from his court-martial conviction. 

2.  The applicant states:

	a.  He never received the amount of money that is in question.  He was in Korea for 3 years and 6 months and he can't find most of his records.  He was in the Army for 6 to 8 months after his scheduled date of return from overseas (DEROS) which should not have happened in the first place.  He signed a power of attorney over to his section sergeant at the time he went into custody.  He never received his personal belongings, totaling $2,000 from Korea.  Given the overall situation, he believes he was taken advantage of.  He was not paid the money that the Defense Finance and Accounting Service (DFAS) official states he owes and he paid all his fines and penalties while in confinement.  He was told on two occasions this issue was fixed back in 2006 and 2007.  

	b.  He can prove beyond a doubt that he never got paid from 2002 through his DEROS date.  If he had been paid, he never received this money.  He has some documents to support what transpired.  He contacted DFAS on two occasions and he was told the debt was a mistake.  It was fixed in 2007 and he thought it was fixed for good.  However, in May 2011, he received a letter stating he owes the money.  

3.  The applicant provides:

* DFAS-IN Form 0-641 (Statement of Military Pay Account)
* DFAS letter, dated what appears to be 13 June 2012
* Letter from a creditor/collection agency
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Self-authored letter to DFAS - Dispute Department
* Letter from the U.S. Army Human Resources Command - St. Louis
* Letter from the National Personnel Records Center
* Letter from the U.S. Army Legal Services Agency
* Orders 086-0162 (separation orders)
* Letter from the Department of Treasury
* Self-authored letter to the Military Court of Appeals
* DA Form 4187 (Personnel Actions)
* Defense Counsel Statement of the Case
* Congressional correspondence
* IRS Form 1040 (U.S. Individual Income Tax Return - 2005) and 2005 W-2
* IRS Form 1040A (U.S. Individual Income Tax Return - 2006 and allied documents
* North Carolina Individual Income Tax Return - 2006
* Correspondence with the Internal Revenue Service

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 November 2000 and appears to have held an infantry military occupational specialty. 

2.  It also appears subsequent to completion of training he was reassigned to Company B, 1st Battalion, 506th Infantry, 2nd Infantry Division, Korea. 

3.  On 11 June 2002, consistent with his pleas, he was convicted by a special court-martial of:

* one specification of failing to go at the time prescribed to his appointed place of duty
* one specification of failing to obey a lawful order
* one specification of stealing a credit card
* four specifications of credit card fraud
* one specification of larceny
* three specifications of falsely pretending to be the person authorized to use a stolen credit card

4.  The court sentenced him to confinement for 7 months and a bad conduct discharge.  He was confined at Fort Knox, KY, effective 1815 hours on 11 June 2002.

5.  On 17 October 2002, the convening authority approved a lesser sentence of confinement for 3 months and a bad conduct discharge, and except for the bad conduct discharge ordered the sentence executed.

6.  On 8 September 2003, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. 

7.  There is no indication he petitioned the U.S. Army Court of Military Review for a grant of review with respect to any matter of law.

8.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, Special Court-Martial Order Number 21, dated 30 January 2004, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

9.  On 26 March 2004, Headquarters, U.S. Army Armor Center, Fort Knox, KY, published Orders 086-0162 ordering his discharge from the Army.  Accordingly, he was discharged from the Army on 2 April 2004.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation     635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial, other.  This form further shows the applicant's character of service as bad conduct and that he completed 3 years, 2 months, and 23 days of creditable military service.  However, this form also shows he:

* had lost time from 11 June 2002 to 18 August 2002
* was on excess leave from 4 September 2002 to 2 April 2004

10.  Upon his discharge from the Army, DFAS audited his pay records between May 2002 and September 2007, although he was discharged in 2004.  DFAS established a debt against him in the amount of $9,346.72, consisting of his:

* total entitlements (basic pay, housing/quarters allowances, clothing allowance, and value of his accrued leave), less
* total deductions (allotments, federal and state taxes, social security/medicare, insurance, reduction to E-1, forfeiture of pay), less
* payments already received (mid-month and end of month pay, May to September 2002)

11.  It appears he contested/disputed this debt with DFAS.  Furthermore, it appears in connection with referring his case to a collection agency, DFAS officially notified him by letter that after a review of his account, they determined the principal amount of $9,346.72 remained a valid debt.  Interest and administrative fees were added, bringing the debt to a slightly higher dollar amount.   The debt was due to payments he had received after he entered into a no-pay status on 6 September 2002.  He was sentenced to confinement from 
11 June to 18 August 2002 and his reduction to E-1 was enforced on 25 June 2002.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a court-martial that sentenced him to confinement, reduction, and a bad-conduct discharge.  He was confined from 11 June 2002 to 18 August 2002.  Once he was released from confinement, he was placed on excess leave from 4 September 2002 to 2 April 2004.  Excess leave is not creditable for pay.  

2.  It also appears subsequent to his court-martial conviction he continued to receive monetary benefits through the date he was placed on excess leave, as shown on the DFAS-IN Form 0-641 he provided.  

3.  Upon discharge from the Army, DFAS officials computed his entitlements and subtracted his deductions and payments.  The net amount is what he owed.  DFAS officials advised him of the reason for this debt.  He disputed it but upon review, DFAS determined it remained a valid debt.  

4.  The applicant has not provided evidence to confirm this debt is in error or unjust.  As such, he is not entitled to 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)                                         AR20120021583





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ABCMR Record of Proceedings (cont)                                         AR20120021583



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