IN THE CASE OF:
BOARD DATE: 10 October 2013
DOCKET NUMBER: AR20130001509
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 or cancellation of an indebtedness of $36,246.95.
2. The applicant states, through no fault on his part, he was paid erroneously and it was several months before he noticed the error. He had not noticed the error due to an out of state move and entry into a college. Due to financial hardship he is unable to repay the debt and if it is not remitted he will be forced to consider bankruptcy.
3. The applicant provides copies of two DD Forms 214 (Certificate of Release or Discharge from Active Duty), the Defense Finance and Accounting Service (DFAS) indebtedness notification and audit, and the U.S. Army Human Resources Command (HRC) remission applications and denial.
CONSIDERATION OF EVIDENCE:
1. The applicant, a New Jersey Army National Guard (NJARNG) staff sergeant, was mobilized and served on active duty from 19 May 2008 through 21Â November 2009.
2. On 6 December 2010, DFAS notified the applicant of an indebtedness in the amount of $39,850.47. An audit of his pay records shows the applicant continued to receive full pay and allowances from the date of his release from active duty on 21 November 2009 through August 2010, a period of nine months.
3. On his initial application for remission of the indebtedness, the applicant states he was working as a commission-based subcontractor and was in significant financial trouble. His only assets were two cars and a rental house that was listed for sale.
4. On 2 July 2012, he submitted an additional request for remission of the debt. On this application he states he is unemployed and can no longer afford the monthly payments to repay his government debt. He was looking into bankruptcy options. He provided a statement wherein he states he relocated from New Jersey to Florida following his release from active duty at which point he also started going to school. While he had opened a new bank account in Florida he was still drawing off the account in New Jersey. He contacted DFAS in the summer of 2010 about overpayment but did not hear back from them until December 2010. In January 2011 he started a one-year repayment plan which he was able to make until his payments jumped from $300.00 to over $1,000.00 per month. During this period he was experiencing under-employment and was having to pay high tuition costs. Following graduation he worked as a self-employed subcontractor but has seen very little work and has a substantial tuition loan debt. He lists his only income as $460.00 per month from a rental house, for which he was making interest-only payments. His total living expenses are shown as $3,123.31.
5. On 4 October 2012, HRC denied his application for remission or cancellation of his indebtedness in the amount of $36,246.95. HRC stated that no grounds exist to remit or cancel the debt based on hardship or injustice.
DISCUSSION AND CONCLUSIONS:
1. The creation of this debt is the fault of both the Government and the applicant, in that DFAS continued to pay him full pay and allowances for nine months after his release from active duty and the applicant accepted and spent the money.
2. While a portion of the blame for the creation of this sizable debt is clearly due to the improper processing the applicant's separation financial records, the applicant also bears a significant portion of the blame as well. I t was his responsibility to notify the Government of the erroneous over-payments and not to spend the money.
3. The applicant's justification for the debt, that he wasn't paying attention to the New Jersey account and had spent the monies before he realized the error, is not a valid argument warranting serious consideration.
4. The applicant knew or should have known that he was not entitled to full pay and allowances following his release from active duty. However, he accepted and spent the erroneous payments and has provided no evidence that he made any attempt to halt payments or mitigate the effect of the over-payments or to set aside these monies knowing they were not authorized.
5. While it is regrettable that the applicant is facing financial problems, these problems are more a result his own actions or inactions than the continuation by DFAS of the improper payments.
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) AR20130001509
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130001509
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120004856
The applicant provides: * memorandum requesting sponsorship, dated 14 March 2007 * Orders 191-12, dated 9 July 2008 * Carlson Wagonlit travel itinerary/invoice, dated 29 July 2008 * DD Form 1351-2 (Travel Voucher or Subvoucher), dated 11 August 2008 * DA Form 5960, dated 11 August 2008 * DD Form 2367, dated 11 August 2008 * Orders 301-02, dated 27 October 2008 * letter from the Darton College Office of the Registrar, dated 5 October 2010 * Account summary from Midland Mortgage Company, dated...
ARMY | BCMR | CY2010 | 20100015601
However, the effective date of the orders was too far back which caused him to be paid active duty pay for a period of service that he had already been paid under the U.S. Army Reserve (USAR) pay system. The immediate commander recommended remission of the applicant's debt. 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.
ARMY | BCMR | CY2013 | 20130004278
The applicant requests repayment of salary withheld by the Defense Finance and Accounting Service (DFAS) in October, November, and December 2011; unpaid leave; back pay from a basic active service date (BASD) adjustment; and remitted debt. While he was still on active duty, DFAS collected $49,777.31 from his pay as noted on his October, November, and December 2011 DFAS Military Leave and Earnings Statements (LES). In an email, dated 24 October 2012, Ms. J______, DFAS, explained to the...
ARMY | BCMR | CY2015 | 20150011717
The applicant requests remission of his indebtedness to the government in the amount of $2,448.49 for shipment of excess household goods (HHGs). The commander stated the applicant was the sole provider for his wife and two children, and as such, the debt incurred during his PCS move proved to be an overwhelming burden. The applicant submitted a DA Form 3508 to the Fort Bragg Finance Office that shows he was requesting remission or cancellation of his indebtedness based on hardship.
ARMY | BCMR | CY2010 | 20100016673
The applicant requests remission or cancellation of his debt to the Government in the amount of $19,452.97. A review of the applicantÂ’s official records shows that prior to being appointed as an aviator warrant officer, the applicant served as a personnel sergeant responsible for the daily administration and operation of a personnel administration center servicing over 523 Soldiers and civilians in matters related to finance and personnel actions as well as many other types of actions. The...
ARMY | BCMR | CY2014 | 20140010810
The applicant requests the remission/cancellation of his bonus debt. He continues by stating that he attempted to remain but was told it was too late and he was never informed of any recoupment actions being taken. Therefore, it appears that his debt is valid and since there appears to be no error or injustice in this case, there is no basis for grantinig his request for remission or cancellation of his debt.
ARMY | BCMR | CY2012 | 20120006402
The advisory official stated that after careful review of this case, it was their opinion that the applicant, a mobilized Reservist with a dependent, would be authorized BAH at the with-dependent rate based on his duty station of Fort Stewart, GA, at the time he was called to active duty. The regulation states, in pertinent part, that a Soldier's debts to the U.S. Army may be remitted or canceled in cases arising from payments made in error to a Soldier, payments made in excess of an...
ARMY | BCMR | CY2013 | 20130001654
The applicant states, in effect, he has a $7,840.00 debt balance for Foreign Language Proficiency Pay (FLPP) entitlements. He contends and provided documentation showing he was eligible for the FLPP on 10 June 2009 and 26 July 2010. DFAS advised that between 13 June 2009 to 30 January 2011 he received FLPP for which he was not entitled and a debt was established.
ARMY | BCMR | CY2014 | 20140007492
The applicant served the required ADSO incurred through receipt of this incentive. The reason for debt states: "Recoupment is required for the unearned portion of your enlistment or reenlistment bonus based on your separation code BNC. Records indicate the applicant received a $30,000.00 CSRB on 26 May 2012 which obligated him to a 60-month ADSO.
ARMY | BCMR | CY2014 | AR20140021727
The applicant states, in effect, that the subject debt resulted from payment of save pay when he converted from his commissioned officer grade to warrant officer grade that was granted in a "2005 Congressional Finding." In a letter dated 18 November 2005, as provided by the applicant, the Director, Military and Civilian Pay Services, DFAS, informed the applicant's Congressional Representative that they had reviewed the applicant's military pay entitlements and determined the following: a....