IN THE CASE OF:
BOARD DATE: 18 February 2014
DOCKET NUMBER: AR20130004278
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 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.
2. The applicant states:
a. Prior to his retirement he was notified by DFAS of a debt in several different amounts that was finally determined to be $60,904.06. He received a Notification of Indebtedness from the 266th Financial Management Center, Kleber, Germany on 13 December 2011. The debt was not resolved before he retired and he continued to work with DFAS personnel to identify the size and validity of the debt.
b. 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).
c. On 6 September 2012, his application for remission or cancellation of indebtedness was approved for the amount of $46,329.14.
d. He contacted DFAS personnel in order to determine the process for reimbursement for the remitted and collected debt. He was informed by email on 24 October 2012 from G_____ C_______, Chief, Special Soldier Programs, U.S. Army Human Resources Command (HRC) that Special Actions Branch, Remissions/Cancellation of Indebtedness, could not assist him with recouping the previously collected $49,777.31 and he would have to appeal to the Army Board for Correction of Military Records (ABCMR).
e. He had a BASD adjustment on 14 October 2011, but he was not paid. He assumed that some of the $49,000 that was taken from him was from this back pay. He had 51 days of leave to sell back but this was not credited to his pay.
3. The applicant provides an affidavit, dated 12 February 2013, with six enclosures.
CONSIDERATION OF EVIDENCE:
1. He enlisted in U.S. Army Reserve (USAR) Control Group (Reserve OfficersÂ’ Training Corps) as a cadet on 17 November 1981. On 26 May 1985, he was appointed a second lieutenant in the USAR. He was ordered to active duty on
15 June 1992 and served continuously until his retirement on 30 November 2011.
2. He provided three memoranda, dated 3 January, 21 November, and
13 December 2011, from the 266th Financial Management Center in Kaiserslautern, Germany. These memoranda show him indebted to the United States in the amounts of $89,766.45, $46,249.80, and $60,904.06, respectively, for overpayment of basic allowance for housing.
3. He submitted his LESs for October, November, and December 2011. The Remarks section of these LESs contain numerous entries concerning "indebtedness due US," "suspend indebtedness," "stop indebtedness," "indebtedness," and resume indebtedness." His October 2011 LES contains the entry "total indebtedness $70423.82(297)." His November and December 2011 LESs contain the entry "total indebtedness $28203.41(326)."
4. He provided a DA Form 1506 (Statement of Service - for Computation of Length of Service for Pay Purposes), dated 14 October 2011, that contains an entry indicating his pay entry base date as 3 September 1981 and his BASD as 27 October 1991.
5. He provided a DFAS-IN Form 0-641 (Statement of Military Pay Account), dated 30 November 2011. This statement shows his total entitlements, including lump sum accrued leave, as $14,891.04. Total deductions is shown as $38,362.87. The statement shows total overpaid as $45,044.65.
6. On 30 November 2011, he was retired and transferred to the Retired List the following day. He completed 20 years, 1 month, and 19 days of active service.
7. He provided a memorandum, dated 6 September 2012, from HRC that approved his application for remission or cancellation of indebtedness in the amount of $46,329.14.
8. He provided an email, dated 19 October 2012, from DFAS that shows the result of the above approval. It shows the original debt amount as $71,195.03, debt adjustments of $26,150.38, administrative change of $1,654.45, waiver of $45,044.65, and write off of $1,654.45. The balance due is shown as zero.
9. He provided a letter, sent by email on 23 October 2012, to Ms. J______, DFAS. He stated he believed DFAS already took $49,000 from his pay. He was also not certain if he received back pay from his BASD adjustment or the money from selling back his leave.
10. In an email, dated 24 October 2012, Ms. J______, DFAS, explained to the applicant the $26,150.38 shown on the email, dated 19 October 2012, was the debt adjustment, the $1,654.45 was interest and penalty and they remitted $46,329.14, which was the balance of the debt owed.
11. An email, dated 25 October 2012, from G C_______, HRC, again explained to the applicant that DFAS took over $26,000 in payment of his debt and the remaining amount was waived resulting in a zero balance.
12. The BASD is the actual or adjusted date from which the amount of active military service performed is calculated. The BASD reflects all periods of active federal military service in commissioned officer, warrant officer, or enlisted status. The monthly longevity basic pay is determined by a member's pay entry base date (PEBD). The PEBD is calculated based on all creditable service.
13. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The DFAS-IN Form 0-641, dated 30 November 2011, shows his total entitlements, including lump sum accrued leave, as $14,891.04. Total deductions is shown as $38,362.87. The statement shows total overpaid as $45,044.65.
2. The email, dated 19 October 2012, from DFAS shows the original debt as $71,195.03 and payments in the amount of $26,150.38. After the waiver of $45,044.65, the remaining amount of debt was zero.
3. Both DFAS and HRC have explained to the applicant how his debt was settled based on the approval for remission or cancellation of indebtedness by HRC. The available evidence supports the explanations he was provided.
4. A change in his BASD would not have affected his rate of pay.
5. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
6. In view of the above, there is insufficient substantive evidence to provide relief in this case.
7. The applicant is advised he may request an audit of his pay account from DFAS to show exact amounts he was paid and amounts withheld from his pay account.
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) AR20130004278
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