BOARD DATE: 11 September 2014
DOCKET NUMBER: AR20140000553
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 his records be corrected to show he was held at Fort Hood, Texas from 17 October 2009 to 3 January 2010 and that his debt be remitted/cancelled and all funds collected be returned to him.
2. The applicant states he was held at Fort Hood, Texas from 17 October 2009 to 31 January 2010; however, his records do not reflect his time at Fort Hood and he is being charged for monies received at that time.
3. The applicant provides copies of his request for involuntary excess leave, a letter from his defense counsel requesting that his pay be reinstated, his airline ticket showing he left Fort Hood, and a copy of the Defense Finance and Accounting Service (DFAS) Debt hearing and findings.
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 was serving in the Hawaii Army National Guard (HIARNG) in the rank of sergeant when he was ordered to active duty in support of Operation Iraqi Freedom on 19 August 2008.
3. Although not contained in the available records, the applicant was convicted by a special court-martial on 19 September 2009. He served his confinement (30 days) in the Iraq/Kuwait Confinement Facility and was transferred to Fort Knox, Kentucky where he was placed on voluntary excess leave pending the appellate review of his court-martial conviction.
4. On 5 January 2010, the applicants defense counsel dispatched a letter to the command in Kuwait indicating that the applicant was at Fort Hood, Texas and was experiencing pay problems and he requested a speedy post-trial processing of the applicants case.
5. On 3 December 2010, orders were published by the U.S. Army Accessions Command at Fort Knox, Kentucky on 3 December 2010 indicating that the findings and sentence had been affirmed and directing the execution of the bad conduct discharge.
6. On 16 February 2011, the applicant was discharged pursuant to a duly affirmed court-martial conviction with a bad conduct discharge (BCD) at Fort Knox, Kentucky. The applicant was unavailable to sign his DD Form 214 (Certificate of Release or Discharge from Active Duty).
7. On 25 January 2012, the applicant was notified by the Defense Debt Management System (DDMS) that he had been overpaid $25,309.82.
8. On 2 February 2012, the applicant contacted the Debt and Claims Customer Care Center to inquire about the debt and was informed of the procedures to submit a written appeal. The applicant made no further contacts with that office or efforts to repay the debt.
9. On 11 July 2012, the Treasury Department notified the applicant that his debt was being referred to collection by Administrative Wage Garnishment (AWG). The applicant did not request a hearing of his case by 1 August 2012 and AWG was initiated.
10. It appears that the applicant requested a hearing by DFAS to dispute his debt, and a hearing was conducted which determined that the debt was valid. The applicant provided the letter from his attorney in Kuwait as his evidence. The findings provided a detailed listing of the debts in question.
11. A review of his official records failed to show orders transferring the applicant to Fort Hood. However, the applicant has provided documents with his application showing that he requested voluntary excess leave through the Trial Defense Service at Fort Hood on 7 January 2010.
12. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) provides in pertinent part, that indebtedness to the U.S. Army will not be remitted or cancelled if a Soldier receives less than an honorable discharge at the time of separation.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his debt is unjust and incorrect because he was being held at Fort Hood has been noted and appears to lack merit.
2. There is no evidence of record and he fails to provide evidence to show he was transferred to Fort Hood and the period for which he was transferred.
3. Therefore, without evidence such as orders to show that he was transferred to Fort Hood and the period involved, there is not sufficient evidence to make a determination other than the determination made by DFAS that is based on documented periods of service.
4. Accordingly, there appears to be no basis to grant his request to correct his records or remit 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.
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