BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130017232 


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 that the debt he incurred due to receiving pay and allowances while in civil confinement be forgiven.

2.  The applicant states his commander was aware that he was placed in civilian confinement, but he did not take action to stop his pay.  As a result, he continued to receive pay and allowances while in confinement.  He requested remission/ cancellation of the debt in the amount of $47,467.00 and his request was partially approved for $23,733.50.  He adds that he does not believe the remaining debt of $23,733.50 is his fault.

3.  The applicant provides a copy of his remission or cancellation of debt packet.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 28 August 2008 for a period of 3 years and 21 weeks.  He was awarded military occupational specialty (MOS) 92G (Food Service Specialist) and he was promoted to specialist (SPC)/ pay grade E-4.  He reenlisted in the RA on 8 April 2010 for a period of 6 years.

2.  A review of the applicant's Army Military Human Resource Record shows the applicant was confined by civilian authorities on 15 January 2011 for a period of 18 months and that he returned to duty on 17 September 2012.

3.  The applicant is currently serving on active duty in the rank of SPC (E-4).

4.  In support of his application, the applicant provides the following documents:

   a.  DA Form 2823 (Sworn Statement), dated 18 October 2012, in which the applicant stated that he was arrested and placed in confinement on or about 
14 January 2011.  He was sentenced to 1 year and 6 months confinement on 
28 November 2011 and given credit for time served.  He was released from prison on 5 September 2012 and returned to his unit on or about 12 September 2012.

    	(1)  During his period of confinement he was unable to check his financial records.  After his release he learned that his Army pay had continued, including his allotments and the automatic payment of his bills from his bank account.

    	(2)  He was informed that he would have to pay back the money he was paid while in confinement.  He stated he was not aware that he should not have been paid while he was in confinement, otherwise he would have stopped his allotments and arranged his finances to save the money he erroneously received in order to pay it back.

    	(3)  He added that he did not save the money he was paid while in confinement and he cannot afford to pay the debt.  The situation is both unjust and a financial hardship.  He requested remission of the debt.

   b.  Two Defense Finance and Accounting Service (DFAS) Forms 702 (Leave and Earnings Statements) pertaining to the applicant for November and December 2011 that show, in part, the following:

   Category				November 2011		December 2011
   Total Entitlement	 	    $2,456.54			    $2,456.59
   Total Deductions		    $1,329.42			    $1,277.17
   Total Allotments			       $655.06			       $655.06
   Net Pay Amount			       $472.06			       $524.36

   c.  DA Form 3508 (Application for Remission or Cancellation of Indebtedness), dated 27 December 2012, that shows the applicant was notified he had a total debt of $47,467.00 on 15 October 2012; $4,171.14 of the debt had been collected; and the remaining debt of $43,295.86 was suspended on
14 January 2013 pending a decision on his application.

   d.  The applicant's immediate and intermediate commanders recommended disapproval the applicant's request for remission of the debt.


   e.  On 14 January 2013, the Director, Military Pay Office, Fort Bragg, NC, recommended the applicant's request for cancellation of indebtedness in the amount of $47,467.00 be disapproved.  He noted that the applicant was in confinement and should not have been paid.  Thus, there are no factors for consideration with respect to injustice.  He also noted that there were factors for consideration with respect to hardship and that an extended payment plan could be offered to the applicant.

   f.  On 2 April 2013, the Chief, Operations Management Division, U.S. Army Human Resources Command (HRC), Fort Knox, KY, partially approved the applicant's application for remission or cancellation of indebtedness in the amount of $47,467.00; it was partially approved for $23,733.50.  It was determined that no grounds exist to remit or cancel the remainder of the debt based on hardship or injustice.  The applicant was advised to contact DFAS for proration of the remaining balance.

5.  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 and those in the Active Guard Reserve program to submit an application for remission or cancellation of indebtedness to the U.S. Army.

   a.  Paragraph 1-4 (Responsibilities) provides that the Secretary of the Army may remit or cancel a Soldier's debt(s) to the U.S. Army or its instrumentalities, if such action is in the best interests of the United States, the debt was incurred while on active duty or on active status, and Soldier received an honorable discharge (if separated from active duty).  The Secretary of the Army has designated the Commanding General, HRC to act for him or her in processing applications.

   b.  Paragraph 1-12 (Determining injustice or hardship) shows the following factors will be considered:

    	(1)  The Army's policy in the area of indebtedness to the U.S. Army (for example, excess leave or Basic Allowance for Housing while living in Government housing).

    	(2)  The Soldier's awareness of policy and procedures.  Past or present MOS, rank, years of service, and prior experience are taken into consideration.

    	(3)  The Soldier's monthly income and expenses.

    	(4)  The Soldier's contribution to the indebtedness to the U.S. Army by not having the situation corrected.

    	(5)  Additional income or assets (for example, spouse's salary, savings account, and bonds).

   c.   Paragraph 1-13 (Additional factors for consideration in determining injustice) shows the application must contain evidence that the applicant:

    	(1)  Did not know, and could not have known, of the error.

    	(2)  Inquired of a proper authority and was told that the payment was correct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his debt was incurred due to receiving pay and allowances while in civil confinement and that he should be forgiven because it was not his fault the Army did not take action to stop his pay.  He also contends that he was unaware he was being paid and he was also unaware that he should not have been paid while in confinement.  He would have stopped his pay had he been aware of the situation.

2.  The evidence of record shows the applicant received pay and allowances while he was in civilian confinement and he incurred a debt in the amount of $47,467.00.

3.  The applicant's contention that he was unaware that a Soldier is not paid while in confinement was considered.  The applicant had completed more than 2 years of active service in the Army and he held the grade of E-4 when he was placed in civilian confinement (a non-duty status).  

4.  The evidence of record shows the applicant acknowledged that his bills were paid while he was in civilian confinement.

5.  On 2 April 2013, the applicant's request for remission or cancellation of indebtedness in the amount of $47,467.00 was partially approved for $23,733.50.  However, it was determined that no grounds exist to remit or cancel the debt based on hardship or injustice.

6.  There is no evidence of record that shows the applicant applied to DFAS for proration of the remaining balance and the applicant provided insufficient evidence to demonstrate hardship.  Thus, in the absence of evidence to the contrary, there appears to be no basis for forgiveness of the debt based on hardship in the applicant's case.  In addition, the applicant provides insufficient evidence to show that the debt is invalid, incorrect, or unjust.

7.  Therefore, in view of all of the foregoing, it is concluded that the applicant's debt is valid and he is not entitled to cancellation or remission of the debt.

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)                                         AR20130017232



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ABCMR Record of Proceedings (cont)                                         AR20130017232



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