IN THE CASE OF:
BOARD DATE: 5 December 2013
DOCKET NUMBER: AR20130005814
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 correction of his debt resulting from his court-martial conviction.
2. The applicant states the debt is incorrect.
a. The amount of the debt listed in the court-martial charges and the amount he paid before the court-martial do not match. He stopped receiving pay after 4 September 2004 due to incarceration and he was later separated. He was reduced after the court-martial, not before.
b. He has worked hard after being released from confinement. It was hard finding a job, and he worked double shifts. Now he owns a business and had a large income tax refund, but it all went to the Defense Finance and Accounting Service (DFAS).
3. The applicant provides copies of:
* Leave and Earnings Statement (LES) for 1-30 April 2004
* DD Form 458 (Charge Sheet), dated 4 June 2004, with several handwritten notes
* an undated continuation page containing the applicant's stipulations to the court-martial charges
* LES for 1-30 September 2004
*
Defense Military Pay Office, Fort Sill, Oklahoma "2nd Audit," dated
26 March 2007
* a 5 March 2013 DFAS letter explaining the debt amounts
* DFAS-IN Form 0-641 (Statement of Military Pay Account), dated 1 March 2013
CONSIDERATION OF EVIDENCE:
1. Following prior active and inactive service, the applicant enlisted in the Regular Army on 27 May 1998 and held military occupational specialty 11C (Indirect Fire Infantryman) and attained the rank of specialist/E-4.
2. His record shows he served in Fort Drum, New York; Fort Campbell, Kentucky; and Korea.
3. On 1 September 2004, consistent with his pleas, he was convicted by a general court-martial of:
* one specification of being absent without leave (AWOL) from 29 January 2001 to 20 September 2002
* one specification of stealing Basic Allowance for Housing (BAH) and Family Separation entitlements from 1 January 2003 through 1 April 2004
4. The court sentenced him to reduction to private/E-1, confinement for
12 months, and a bad conduct discharge. The general court-martial convening authority apparently approved the sentence on 15 September 2004.
5. Headquarters, U.S. Army Field Artillery Center and Fort Sill, Orders 042-27 show he was reduced to private/E-1 effective 15 September 2004.
6. There is no available record of any appeals.
7. Headquarters, U.S. Army Field Artillery Center, and Fort Sill, General Court-Martial Order Number 29, dated 9 February 2006, shows that the sentence was affirmed, and the confinement had been served. Article 71(c) having been complied with, the BCD was to be executed.
8. He was discharged on 16 August 2006. His DD Form 214 (Certificate of Release or Discharge from Active Duty) 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. His character of service is shown as bad conduct. He had completed a total of 6 years, 3 months, and
29 days of creditable military service. However, this form also shows he:
* had lost time from 29 January 2001 to 20 September 2002 and from
1 September 2004 to 16 March 2005
* was on excess leave from 14 May 2005 to 16 August 2006
9. The applicant provided an undated document that appears to be a continuation page showing his stipulations of facts as to the court-martial charges. The document shows:
a. He received BAH for a dependent (his spouse) residing in Maryland, but he was not entitled to BAH at the Maryland rate because his spouse resided with him in Korea. The Maryland BAH rate was significantly higher than the Korea rate. He also began to receive Family Separation Allowance (FSA) that he was not entitled to because his spouse lived with him in Korea. He knowingly received these allowances that he was not entitled to from January 2003 to
1 April 2004.
b. He committed larceny of military property in the amount of $10,457.40. He made no effort to inform his chain of command when he discovered he was receiving these allowances.
c. The applicant signed the document as the "Accused" along with the Defense and Trial Counsels.
10. On 5 March 2013, DFAS provided the applicant with a letter which indicated they had reexamined his account and determined that the principal debt balance of $13,222.52 was correct. The amount due was for collection of an overpayment of BAH, family separation housing (FSH), and an overpayment of basic pay due to his reduction in pay grade from E-4 to E-1. After deducting what he had paid, he owed:
* $7,343.13 for overpayment of BAH during the period May 2003 through 31 March 2004
* $2,750.00 for overpayment of FSH during the period September 2003 through 31 August 2004
* $3,129.39 for overpayment of basic pay resulting from his reduction from E-4 to E-1 effective 16 September 2004
DISCUSSION AND CONCLUSIONS:
1. The applicant was convicted by a general court-martial that sentenced him to confinement, reduction, and a bad-conduct discharge.
2. DFAS officials computed his entitlements and subtracted his payments. DFAS indicated that he was reduced to E-1 effective 16 September 2004, which is correct since it appears the general court-martial convening authority approved his sentence on 15 September 2004. The net amount is what he owed. DFAS officials advised him of the reason for this debt.
3. The applicant has not provided evidence to confirm the amount of the remaining 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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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20130005814
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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