IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130004817 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's entire debt of $97,805.77 be waived.

2.  Counsel states, in effect:

	a.  The applicant, a retired lieutenant colonel (LTC), was deployed in support of Operation Enduring Freedom from 1 August 2002 to 9 August 2006.  During the period of his deployment he was issued temporary change of station (TCS) orders which qualified him for travel entitlements and travel advances.  The applicant received a total of $97,805.77 in travel entitlements.

	b.  On 13 August 2009, the Defense Finance and Accounting Service (DFAS) determined the applicant was overpaid for his travel entitlement and that he was indebted to the U.S. Government for the full amount ($97,805.77) of the travel entitlements he received.

	c.  On 15 September 2009, the applicant submitted a DD Form 2789 (Waiver/Remission of Indebtedness Application), wherein he stated that he was unaware he had been overpaid for his travel entitlements and that economic hardship prevented his repayment of the debt.  On 30 June 2010, DFAS denied the applicant's waiver request.

	d.  Recoupment of the $97,805.77 debt would place a significant economic hardship upon the applicant.  Title 10, U.S. Code (USC), section 2774 provides the Army Board for Correction of Military Records (ABCMR) the authority to waive claims of erroneous payment if collection of the claim would be against equity and good conscious.  The ABCMR should grant relief on the principle of equity because the applicant served honorably and with distinction in the U.S. Army for over 24 years and because it is not in the best interest of United States to seek recoupment which would place an undue economic hardship on a veteran.

	e.  The applicant served with honor and distinction for over 24 years.  His final officer evaluation report (OER) from his deployment in support of Operation Enduring Freedom speaks positively to his service while deployed and his previous OERs show he provided the U.S. Army with unparalleled service.

	f.  The ABCMR can assess an application based on evidence of error with regard to particular legal and procedural issues.  However, the ABCMR also has the authority to assess an application based on other considerations, for example, to the extreme prejudice suffered as a result of an agency's action to a service member who has provided years of exemplary service.

3.  Counsel provides:

* Memorandum/letter, dated 11 January 2013
* Memorandum in support of application for correction of records, undated
* OER for the period 13 February 2006 through 30 June 2006
* Travel voucher, dated 13 August 2009
* DA Form 2789, 15 December 2009
* Letter from DFAS, dated 20 June 2010

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 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 appointed as Reserve commissioned officer on 
23 December 1982.  He served in a variety of assignments in the U.S. Army Reserve until he was transferred to the retired reserve on 1 November 2009, in the rank of LTC.

3.  His record contains several sets of orders and historical mobilization information located in the Total Army Personnel Data Base (TAPDB) which shows he was mobilized in support of:

* Operation Noble Eagle from 1 October 2001 to 27 June 2002
* Operation Noble Eagle from 28 June 2002 to 17 January 2003
* Operation Iraqi Freedom from 16 May 2004 to 6 March 2005
* Operation Enduring Freedom from 25 May 2005 to 24 May 2006
* Operation Enduring Freedom from 27 March 2007 to 23 May 2008

4.  His record contains a letter of reprimand (LOR), dated 19 December 2006, which shows he was reprimanded for dereliction of duty, inappropriate use of Government computers, and conduct unbecoming an officer in violation of Articles 92 and 133, Uniform Code of Military Justice (UCMJ).  The LOR stated:

	a.  On or about 21-27 September 2006 and on or about 3-5 October 2006, while on official duty as the Battle Captain of the Defense Logistics Agency Joint Logistics Operations Center (JLOC) the applicant used a Government computer on numerous occasions within the JLOC and accessed inappropriate and numerous pornographic sites on the internet.  On one occasion, a subordinate Army noncommissioned officer (NCO) observed him accessing a pornographic website while he was the Battle Captain of the JLOC.  This misconduct was substantiated pursuant to an investigation conducted by the Defense Logistics Agency Criminal Investigations Activity (DCIA).

	b.  The reprimanding officer, a Rear Admiral, stated that the applicant's "conduct was inexcusable and demonstrated a complete disregard for the Army punitive regulations and a total lack of critical Army values.  [Applicant]… brought discredit to the United States Army and the Defense Logistics Agency.  [The reprimanding officer]… question[ed] whether [Applicant] deserved the special trust and confidence the United States Army has placed in [Applicant] as an officer.

5.  His record contains a relief for cause OER for the rating period 1 July 2006 through 20 March 2007, which shows:

	a.  His rater checked "No" boxes for the Army values honor, integrity, and selfless-service, thereby indicating he did not demonstrate these Army values during the rating period. 

	b.  His rater checked the box "Unsatisfactory Performance, Do No Promote" and stated "From 21-27 Sep[tember] 2006, and from 3-5 Oct[ober], while on official duty as the JLOC Battle Captain he was derelict in the performance of his duties by inappropriately using a government computer to access illegal pornographic websites in violation of Articles 92 and 133 of the UCMJ.  He was observed accessing these sites by a subordinate NCO… In addition to his duty limitations, his access to the JLOC was revoked due to a severe lapse in judgment… Additionally, [Applicant's] disappointing and distracting performance of duty disqualifies him from consideration of further service in the military.  Member did not complete an APFT [Army Physical Fitness Test] during this rating period… Do not promote."

	c.  His senior rater marked the boxes "Do Not Promote" and "Below Center of Mass Do Not Retain" and stated "Although an experienced logistics officer, [Applicant] displayed a lack of poor judgment requiring relief and reassignment from his primary duties… [Applicant] is not recommended for future service in the Army."

6.  His record contains a travel voucher summary, prepared on 8 October 2009, which shows he was paid a total of $97,805.77 in advances/prior payments for the period 1 August 2002 through 9 August 2006.  The remarks section contains the statement "Tainted voucher - Criminal Investigation Department (CID) Number [XXXX-XXXX-XXXXXX-XXXXX].  Collected back residential lease lodging for period 1 August 2002 - 9 August 2006.  Soldier is in [debt to the]… United States… for $97,805.77."

7.  The Army Grade Determination Review Board (AGDRB) notified the applicant in a letter, dated 10 April 2012, that his military record contained derogatory information in the form of a memorandum or reprimand and a relief for cause OER.  This derogatory information rendered him subject to a determination concerning the highest grade he held satisfactorily for the purpose of retired pay when he became eligible to receive non-regular retired pay.  He acknowledged receipt of this notification on 18 June 2012.

8.  On 5 October 2012, the AGDRB directed he be placed on the retired list in the grade of major (MAJ), and that his retired pay be determined based on that grade.


9.  Counsel provided a glowing OER for the rating 13 February 2006 through 
30 June 2006.

10.  Counsel provided a travel voucher statement, dated 13 August 2009, which states, essentially, that CID conducted an investigation regarding the applicant’s travel claim for the period 1 August 2002 - 9 August 2006 and determined that the lease agreement was fraudulent, and as a result the applicant was indebted to the government for the full amount of travel entitlements he had previously received ($97,805.77).

11.  Counsel submitted a DD Form 2789, dated 15 September 2009 which shows the applicant requested the $97,805.77 travel entitlement/travel advancement debt be waived.  He stated he was unaware he had been overpaid, that due to the economy he had lost considerable income, and it would cause a severe hardship if he had to repay the debt.  

12.  Counsel provided a letter from DFAS, dated 30 June 2010, wherein a DFAS official stated:

	a.  The applicant applied for waiver consideration of a $97,805.77 indebtedness resulting from the overpayment of travel entitlements during the period 1 August 2002 through 9 August 2006.  The applicant was ordered to active duty for a mobilization in support of Operation Enduring Freedom during this period.  At the completion of the applicant's mission, he submitted a final travel settlement, and upon processing his voucher it was determined that he was overpaid prior accrual payments, thus placing him in debt to the Government.  An investigation by the Fort Myer, VA CID Office, found that the applicant committed the offenses of larceny and fraud when he submitted settlement vouchers containing a fraudulent lease agreement and receipts to DFAS.  Due to the investigation results, his travel settlements from 1 August 2002 through 9 August 2006 are considered tainted.  Since his travel vouchers included fraudulent claims, the applicant is not entitled to any reimbursement for lodging.  Officials at DFAS verified that the amounts on the debt computation equal the amount being requested for waiver.

	b.  Title 10, USC, section 2774 provides authority for waiving claims for erroneous payments of pay and allowances made to or on behalf of members or former members of the uniformed services, if collection of the claim would be against equity and good conscience and not in the best interest of the United States.  Generally, these criteria are met by a finding that there is no indication of fraud, fault, misrepresentation, or lack of good faith on the part of the claimant or any other person having an interest in obtaining a waiver of this claim.

	c.  The CID Final Report of Investigation, dated 17 July 2008, found the applicant guilty of larceny and fraud.  Waiver statute dictates that there must be no indication of fraud, fault, misrepresentation, or lack of good faith.  Thus, the applicant's $97,805.77 indebtedness is ineligible for waiver consideration.

13.  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 to submit an application for remission or cancellation of indebtedness to the U.S. Army.  Paragraph 1-8 (Indebtedness to the U.S. Army that may not be remitted or canceled under Title 10, USC, Section 4837) states that indebtedness to the U.S. Army will not be remitted or canceled when debts are due to loss of public funds obtained or converted to own use through fraud, larceny, embezzlement, or other unlawful means.

14.  Title 10, USC, Section 4837 states that the Secretary of the Army may remit or cancel any part of the indebtedness of a person to the United States or any instrumentality of the United States incurred while the person was serving on active duty as a member of the Army, but only if the Secretary considers such action to be in the best interest of the United States.

DISCUSSION AND CONCLUSIONS:

1.  Counsel argues that the ABCMR should waive the applicant's entire debt of $97,805.77 based solely on the principle of equity because:

	a.  The applicant served with honor and distinction for over 24 years.

	b.  His final OER for the rating period 13 February 2006 through 30 June 2006 speak positively to his service while deployed and his previous OERs show he provided the U.S. Army with unparalleled service.

	c.  It is not in the best interest of the United States to seek recoupment of the $97,805.77 debt because that would place an undue economic hardship on the applicant, a veteran.

2.  However, counsel's argument lacks merit for the following reasons:

	a.  The applicant received an LOR in 2006 for dereliction of duty, inappropriate use of Government computers, and conduct unbecoming an officer because he was using his Government computer to view pornographic websites while on duty.  All personnel accessing Government computers are required to take training and sign paperwork acknowledging that they understand that, among other things, accessing pornographic material is strictly forbidden.  He knew that accessing pornographic material on a Government computer was illegal and punishable and blatantly chose to ignore the Army's rules and regulations and access these sites anyway.  Worse, he was caught accessing illegal sites by a subordinate NCO, which completely degraded his position as a leader and brought shame upon the officer corps.

	b.  Contrary to counsel's contentions, his last OER on file did not sing his praises.  His last OER was a relief for cause OER wherein his rating chain indicated that he lacked the Army values of honor, integrity, and selfless-service.  Additionally, his rating chain stated that:

* his performance was unsatisfactory
* he should not be promoted
* his disappointing and distracting performance of duty disqualified him from consideration of further service in the military
* he was a below center of mass officer and should not be retained by the Army
* he displayed poor judgment requiring relief and reassignment from his primary duties
* he was not recommended for future service in the Army

	c.  The derogatory information in the applicant's record resulted in the convening of the AGDRB.  The AGDRB determined that based upon the applicant's record he did not serve satisfactorily in the rank of LTC.  Therefore, he would be placed on the retired list as a MAJ.  

	d.  Last, but most relevant, is the fact that the travel voucher he submitted to DFAS for travel entitlements during the period 1 August 2002 through 9 August 2006 was investigated by CID.  The CID investigation revealed that the applicant committed the offenses of larceny and fraud when he submitted settlement vouchers containing a fraudulent lease agreement and receipts to DFAS.

3.  Equity is a principle of justice used to correct or supplement the laws, statutes, and regulations as applied to a particular set of circumstances.  Equity refers to doing what is right by applying fairness, impartiality, or evenhanded dealing.  Cases are generally decided by equity when the laws, statutes, and regulations are incapable of fully addressing the issue at hand.  

4.  This case must be based upon whether or not the Government or an agent of the Government created an administrative error in the applicant's records which resulted in error or injustice to the applicant.  
5.  The principle of equity does not apply in the applicant's case not only because the applicant demonstrated a total and complete disregard for rules, regulations, and laws during his military career, but also because the laws and regulation regarding the issue at hand are crystal clear in stating that "indebtedness to the U.S. Army will not be remitted or canceled when debts are due to loss of public funds obtained or converted to own use through fraud, larceny, embezzlement, or other unlawful means."

6.  The applicant incurred the $97,805.77 debt because he committed fraud and larceny when he submitted fraudulent lease agreements and receipts to DFAS. Counsel has submitted no evidence to the contrary.  Therefore, based on the foregoing, there is an insufficient evidentiary basis to grant 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)                                         AR20130004817





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ABCMR Record of Proceedings (cont)                                         AR20130004817



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