. 

		BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130020228 


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 correction of the applicant's records by remitting a debt he incurred as a result of overpayment of pay and allowances.

2.  Counsel states:

	a.  The applicant requests remission of an invalid military debt to the Defense Finance and Accounting Service (DFAS).  This request is made because errors and injustices occurred in the applicant's separation from the military and subsequent calculation of an outstanding debt.  The debt has been calculated based on a false allegation the applicant was absent without leave (AWOL) during some of his service.  The applicant is a career Soldier who has never been AWOL and was discharged after attaining the rank of master sergeant.  He served honorably and was paid accordingly.  He should owe no debt and he respectfully asks that it be remitted.

	b.  The applicant was serving at Fort Lewis, WA during the alleged AWOL time periods and was directed to report and remain at Fort Lewis by his supervisors.  He faced an Article 32 investigation for the charge of AWOL.  The testimony provided by his supervisors and doctor clearly show he was not AWOL, but was instead serving at Fort Lewis under the direction of his supervisors and advice of his doctor.
	c.  The applicant received an administrative discharge (chapter 10, discharge in lieu of a court-martial) from the Army following the Article 32 hearing.  One of the main reasons a convening authority, under the advice of his legal counsel, will agree to this type of discharge after court-martial charges are initiated against the applicant is because he or she learns through the Article 32 hearing that the evidence against the accused is extremely weak or simply not there.  That is most probably what occurred in this case.  The Article 32 hearing demonstrates the applicant was never AWOL, but was instead directed to go to Fort Lewis by his supervisors and was given every reason to believe that he was to remain there.

	d.  In 1998, the applicant injured his back in training and fell approximately 
40 feet.  In 2001, he fell off an M1 tank onto his back further aggravating his initial injury.  When the applicant was assigned to Fort Hood, TX in 2001 he had approximately 18 years of service.  

	e.  In May 2002, his personal situation became worse.  Both his financial situation, exacerbated by his estranged spouse, and his physical condition had significantly deteriorated.  He underwent surgery for his right shoulder in February 2003 and he underwent surgery for his back in November 2005.    
  
	f.  In an attempt to address his financial and physical issues, his chain of command conferred and agreed to allow him to go to Fort Lewis and sign in to 
I Corps.  He reported to Fort Lewis in May 2002.  During this time period, the applicant sought additional employment with the approval of his then supervisor.

	g.  From November 2002 through November 2004, the applicant submitted three retirement packets.  He was ordered to return to Fort Hood, TX in December 2005. 
	
	h.  The applicant never evaded service and he was never AWOL.

	i.  The Article 32 testimony clearly shows the applicant was sent to Fort Lewis by command sergeant majors and that it was their way of taking care of a career Soldier who needed help.  The applicant did nothing wrong.  He remained at Fort Lewis with authority and continued to serve.  He also reported back to Fort Hood when he was told to do so.  The applicant loyally served the Army for over 
20 years.

3.  Counsel provides five enclosures outlined in his brief.



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 Army Board for Correction of Military Records (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 enlisted in the Regular Army on 4 January 1984 and remained on active duty through continuous reenlistments.  He trained as an Abrams tank systems mechanic and was promoted to sergeant first class on 1 May 1997. 

3.  Records show the last DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) in his military records covers the period February 2001 through January 2002.

4.  His records contain DA Forms 4187 (Personnel Action) that show his duty status was changed from:

* Present for duty to AWOL, effective 6 August 2002
* AWOL to return to military control (RMC)/present for duty effective 
      4 August 2005
* Present for Duty to AWOL, effective 17 November 2005
* AWOL to RMC/present for duty, effective 16 December 2005  

5.  In April 2006, charges were preferred against the applicant for:

* Desertion from 6 August 2002 to 4 August 2005
* AWOL from 17 November 2005 to 16 December 2005 

6.  Counsel provides a DD Form 457 (Investigating Officer's Report (of charges under Article 32, Uniform Code of Military Justice and R.C.M. 405, Manual for Courts-Martial)), dated 25 May 2006.  

	a.  Item 18 (Reasonable grounds exist to believe that the accused committed the offense(s) alleged) of this form shows an "X" in the Yes block.  

	b.  The opening remarks by the Government stated this is a case about an E7 who went to Fort Lewis without orders and once he was there he did no work for the Army but still collected his full military paycheck for 3 years.  In April 2002, he was authorized to go on leave for 2 weeks to Fort Lewis, when his 2 weeks were up he did not return to Fort Hood.  Instead, he stayed at Fort Lewis and did not perform any military duties.  As evidence of this for over 3 years he did not receive any NCOERs.  During these 3 years he stayed at Fort Lewis, started his own custom motorcycle business, and collected full military pay and allowances even though he had absented himself from his unit with the intent to never return to the Army. 

	c.  The investigating officer's recommendation is not available.

7.  On 30 June 2006, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged that by submitting his request for discharge he was guilty of the charges against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable, he might be ineligible for many or all benefits administered by the Department of Veterans Affair (VA), he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf.  

8.  On 5 September 2006, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 
635-200, chapter 10 and with an under other than honorable conditions discharge. 

9.  On 15 September 2006, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 19 years, 7 months, and 15 days of creditable active service with 1,124 days of lost time.  

10.  In August 2013, in response to the applicant's inquiry disputing his indebtedness to the Department of Defense, DFAS informed him by letter that:

	a.  Upon review of his account, that office determined his debt in the principal amount of $160,386.09 remains valid.  That office added interest and administrative fees totaling $1,141.48, bringing his balance due to $161,527.57.  

	b.  His debt is due to an overpayment of pay and allowances for the time period(s) that he was AWOL from the Army.  The debt was acquired during the periods 6 August 2002 through 3 August 2005 and 17 November 2005 through 16 December 2005.  He was not due pay and allowances during those times.  

	c.  Since the debt was forwarded to that office for collection from his former activity, that office has no authority regarding cancellation or reduction.

	d.  Based on his DD Form 214 he left with a separation program designator code of "KFS" (in lieu of trial by court-martial).  Therefore, his recoupment is required and proper. 

11.  Counsel provides an undated letter from the manager with General Motors Defense, Fort Lewis who states:

* in 2002 the applicant contacted him about working for him
* he called the applicant's chain of command at Fort Hood, TX and spoke with a sergeant major or lieutenant colonel who assured him the applicant was cleared to come to work for him at Fort Lewis
* the applicant showed up shortly thereafter

12.  On 18 March 2014, the Army Discharge Review Board denied his request for a discharge upgrade.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.







DISCUSSION AND CONCLUSIONS:

1.  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.  

2.  The evidence shows the applicant incurred a debt in the amount of $161,527.57 for overpayment of pay and allowances while he was in an AWOL status.  

3.  Counsel contends the applicant was serving at Fort Lewis during the alleged AWOL periods.  However, there are no NCOERs for the period February 2002 to December 2005.    

4.  Counsel contends the applicant was never AWOL.  However, the evidence shows the applicant was not issued reassignment orders and he was AWOL from 6 August 2002 to 3 August 2005 and from 17 November 2005 to 15 December 2005.  In the applicant's voluntarily request for discharge, he acknowledged that by submitting his request for discharge he was guilty of the charges against him.  

5.  There is no evidence of record and he provided no evidence which shows this debt was incurred erroneously.

6.  Based on the foregoing, there is insufficient evidence on which to grant his request.

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)                                         AR20130020228



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ABCMR Record of Proceedings (cont)                                         AR20130020228



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