IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140008968 


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 he be refunded $4,834.99 for 22 days leave which were charged to him after he retired from the U.S. Army.

2.  The applicant states:

   a.  He retired from Hohenfels, Germany on 31 December 2013.  At the time of his retirement processing he filled out a DA Form 31 (Request and Authority for Leave) requesting 42 days of transitional leave which was validated by the Defense Finance and Accounting Service (DFAS).

   b.  At the time, his Leave and Earnings Statement (LES) showed 65.5 days of accrued leave; however, he had just returned from 30 days leave and those days were not charged yet.  On 20 October 2013, he departed Germany for Jacksonville, FL to start permissive temporary duty and terminal leave.  On              1 February 2014, he contacted DFAS to check on the status of his final pay which was being held pending a final audit of his records.  He was informed that his final pay was held to repay a debt of $4,834.99 that he owed for taking            22 days of excess leave.  He requested an inquiry into the findings.

   c.  He was contacted by a Senior Ombudsman for Military Pay, DFAS-Indianapolis, who provided him a written explanation to his inquiry.  It was determined that he had taken 22 days of leave that he wasn’t entitled to.  Records show that he requested leave from 18 December 2012 to 9 January 2013.  He signed out on leave on 19 December 2012 and signed back in off leave on 9 January 2013.  A further check of his records showed that those       22 days were charged to him in January 2014 (12 months after he had taken the leave and retired from the Army).  The charge is represented on his December 2013 LES; however, he also provides LESs which show the leave had not been charged.

   d.  The DFAS Ombudsman stated that his records show the leave dates were input into the DFAS system in December 2013, but was kicked back due to being outside the 12-month window.  He further stated the leave dates were resubmitted in January 2014 and was accepted resulting in his accounting being delinquent.

   e.  The DA Form 31 for the period 18 December 2012 to 9 January 2013 show that he signed back in from leave on 9 January 2013 giving DFAS plenty of time to process it and charge his account accordingly.

   f.  It is his opinion that an error at finance was the cause and he should not be liable for the leave days.  If his December 2012 leave would have been processed in a timely manner, his record would have reflected it correctly and he would have taken the correct number of days he was entitled to.

3.  The applicant provides:

* a self-authored statement
* 2 DA Forms 31 
* 5 LESs
* a 6-page email from a DFAS Ombudsman

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 10 August 1988.  

2.  On 31 December 2013, he was released from active duty and placed on the retired list on 1 January 2014 in the rank/grade of sergeant first class (SFC)/E-7.

3.  The applicant provides:

   a.  A DA 31, dated 30 October 2012, that shows the applicant was signed in and out on ordinary leave for the period 19 December 2012 to 9 January 2013.

   b.  Several LESs subsequent to January 2013 which fail to show the leave period in question was ever charged as leave.

   c.  An explanation from a DFAS Ombudsman regarding the applicant's inquiry into his leave balance situation.  The ombudsman stated 22 days of pay and entitlements were collected due to excess leave.  

4.  During the processing of this case, on 13 June 2014, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1 who opined:

   a.  The documents provided by the applicant were reviewed and based on the review he recommended the Board deny the applicant's request to refund  $4,834.99 for 22 days leave used but not identified until after retirement.

   b.  The applicant acknowledges on the DD Form 149 (Application for Correction of Military Record) that he took 22 days leave during the period        19 December 2012 to 9 January 2013.  However, due to problems inputting the data into DFAS computers in 2013, the applicant was never charged for 22 days leave while he was on active duty.  A DFAS pay/leave audit conducted after his retirement identified the error, which is unfortunate.  However, that cannot be the basis of his argument to waive a valid Government debt.

   c.  While an error occurred in inputting the leave data into the DFAS computer, the applicant was aware via his monthly LES that the 22 days leave he took were never deducted from his annual leave balance and he had ample opportunity before retirement to get his leave balance corrected.  Additionally, the applicant provided no documentation that he ever visited his local finance office to inquire why the 22 days leave he used were not deducted from his annual leave balance.  Had DFAS mistakenly charged the applicant more leave days than he actually used, he is sure the applicant would have gone to the local finance office to get the mistake corrected.  However, when DFAS identified the error, he was only charged for the leave days he actually used.  Therefore, this office recommends the Board deny the applicant's request that he be refunded $4,834.99 collected to settle a DFAS debt for 22 days of excess leave. 

5.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He stated:

   a.  He returned from leave on 9 January 2013, and signed in prior to returning to duty.  From there it is up to his unit S1 and local finance office to process his leave in accordance with the applicable regulation.  When he submitted his       DA Form 31 for his retirement, he checked his leave balance on the MyPay website, and he also visited his local finance, twice, and both times his leave was verified.

   b.  Once finance noticed the error, 13 months had passed, and he was officially retired from the service.  He followed the procedure in accordance with the applicable regulation.  Either his S1 or the Hohenfels Finance Office failed to follow the procedures established in the applicable regulation.  As a Soldier, we are required and held accountable.  If we fail to follow regulations, how is the finance office or S1 not?  He feels the situation is not his fault since he did go to finance on two occasions and verified his leave balance.

6.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members) states in pertinent part, that indebtedness to the U.S. Army may be remitted or cancelled if the debt is considered unjust, a hardship, or causes undue suffering.  Further, it may be remitted or cancelled if the debt is the result of payments made in error, made in excess of authorized allowances, and the debt is acknowledged as valid.  An injustice or hardship determination takes into consideration the Soldier's awareness of policy and procedures, past and present specialty, rank, years in service, prior experience, and the Soldier's contribution to the indebtedness by not having the situation corrected.  A debt will not be remitted or cancelled under Title 10, United States Code (USC), section 4837, or under Title 32, USC, section 710(c), when a Soldier is retired, whether the debt occurred before or after retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be refunded $4,834.99 for 22 days of leave that were charged to him after his retirement in January 2013.

2.  The applicant does not dispute that he used 22 days leave from 19 December 2012 to 9 January 2013, although he contends his S1 or local finance office failed to follow procedure to ensure his leave was timely and correctly charged.   The applicant claims the situation is not his fault since he went to finance on two occasions and verified his leave balance; however, he failed to provide sufficient evidence to support this contention. 

3.  Regardless, the applicant was a SFC with over 24 years of service.  At this point in his career it is unfathomable to presume that he did not know how to interpret his LES.  The applicant knowingly used the disputed leave and it appears he did not exercise due diligence with regard to ensuring the leave period was accounted for upon creating his transition leave from the Army into retirement.
  
4.  Notwithstanding his contentions, the fact remains that he received a benefit that he was not entitled to receive.  A debt will not be remitted or cancelled under Title 10, USC, section 4837, or under Title 32, USC, section 710(c), when a Soldier is retired, whether the debt occurred before or after retirement.  The applicant should not benefit from any entitlement he did not earn and he should not be allowed to receive a free benefit that other Soldiers pay for.  

5.  In light of the foregoing, 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)                                         AR20140008968





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ABCMR Record of Proceedings (cont)                                         AR20140008968



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