IN THE CASE OF:	

		BOARD DATE:	  18 August 2015

		DOCKET NUMBER:  AR20140019461 


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 remission of his Defense Finance and Accounting Service (DFAS) debt of $15,218.84.

2.  The applicant states:

* he was on active duty at the time DFAS claims he entered a no-pay status
* he was arrested on 12 September 2001 and imprisoned in the state of New Mexico, where he was sentenced to 9 years in confinement
* he never received any of this money DFAS claims to have paid him and on one else had access to his accounts
* the banks have no records of his accounts going back that far as it has been over 7 years
* he is trying to get his life together and this debt for money he never received is causing him problems
* he never received the payments – therefore, he doesn't feel he should be responsible for the debt

3.  The applicant provides;

* DA Form 3508 (Application for Remission or Cancellation of Indebtedness), dated 29 September 2014
* DA Form 2823 (Sworn Statement), dated 29 September 2014
* DFAS letter, dated 1 April 2014
* DFAS-Indianapolis Form 0-641 (Statement of Military Pay Account), dated 31 March 2014
* archival Leave and Earnings Statements (LES) covering the periods 
1-30 June 2001, 1-31 July 2001, and 1-31 August 2002
* DFAS letter, dated 26 June 2014

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.  After a period of service in the Army National Guard which began on 20 July 1998, the applicant enlisted in the Regular Army on 26 April 2000.

3.  Records indicate the applicant's duty status was changed from present for duty (PDY) at Fort Bliss, Texas, to absent without leave (AWOL) on 22 July 2000.  On 21 August 2000, his duty status was changed from AWOL to dropped from the rolls (DFR).

4.  On 13 September 2001, he was apprehended by civilian authorities and returned to military control.  On that date his duty status was changed from DFR to returned to military control (RMC)/PDY.  On 14 September 2001, his duty status was changed from RMC/PDY to AWOL when he failed to report to the Personnel Control Facility at Fort Sill, Oklahoma, for out-processing from the Army.  On 15 September 2001, his duty status was changed from AWOL to DFR.

5.  A DD Form 458 (Charge Sheet), dated 19 March 2002, shows he was charged with violation of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 22 July 2000 until on or about 13 September 2001 and from 14 September 2001 until an unknown future date, with the intent to remain away permanently as he was still AWOL at the time the charges were preferred.

6.  On 16 November 2004, the applicant surrendered to military authorities at Fort Sill, Oklahoma.  His duty status was then changed from DFR to RMC/PDY.

7.  On 19 November 2004, he consulted with legal counsel and voluntarily requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He was advised of the basis for his contemplated trial by court-martial, admitted his guilt, indicated he understood he could receive a discharge under other than honorable conditions and the discharge would have a significant effect on his eligibility for veterans' benefits.  He did not submit a statement in his own behalf.

8.  The chain of command recommended approval of his discharge under other than honorable conditions and the separation authority approved the request on 9 March 2005.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 1 April 2005 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He was credited with 2 years, 4 months, and 21 days of active service.  His lost time during this period amounted to 1,204 days.

9.  He submitted an application for remission or cancellation of indebtedness to DFAS on 29 September 2014 which stated he was unemployed with no monthly income and he was informed of a DFAS debt of $15,218.84 on 1 February 2013.

10.  The applicant provided two letters addressed to him from DFAS, dated 
1 April 2014 and 26 June 2014, regarding an audit of his debt to the United States in the principal amount of $15,218.84.  Both letters state:

* the debt has been determined to be valid
* the amount due is for collection of payments received after entering a 
no-pay status, for collection of an advance payment, and for collection of a UCMJ forfeiture
* $13,604.68 of the debt is due to payments he received after he entered a no-pay status on 30 July 2000:  $300.00 casual payment on 11 June 2001, $1,641.02 on 15 June 2001, $452.65 on 30 June 2001, $799.09 on 15 July 2001, $746.06 on 31 July 2001, $9,965.86 in August 2002
* subsequent to his discharge, DFAS received information regarding the collection of an $800.00 advance payment from 2 May 2000, $73.96 of which was collected from discharge entitlements, leaving a balance of $726.04
* a portion of his debt was the result of a $695.00 collection for UCMJ forfeiture of pay sentenced on 26 June 2001
* a portion of his debt was the result of a $234.00 collection for UCMJ forfeiture of pay sentenced on 23 May 2000, $40.88 of which was collected at his discharge leaving a balance of $193.12
* these sums result in his total indebtedness at discharge of $15,218.84

11.  He provided a Statement of Military Pay Account and accompanying LESs corroborate these sums and show payment to an account with the Armed Forces Bank.

12.  Army Regulation 37-104 (Military Pay and Allowances Policy and Procedures-Active Component) provides Department of the Army policies for entitlements and collections of pay and allowances for active duty Soldiers.  It is used in conjunction with Department of Defense Financial Management Regulation (DODFMR), Volume 7, Part A.  Paragraph 3-1 states Soldiers are entitled to receive pay according to their pay grades and years of service if on active duty in a pay status and not prohibited by law from receiving such pay.  Paragraph 1-5 states all payments due the Soldier or deductions due the U.S. Government identified or prepared after transition will be forwarded to DFAS-Indianapolis.  Procedures for the administration of unauthorized absences are contained in Army Regulation 630-10 (Absence without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings).

13.  Army Regulation 630-10 establishes policies and procedures for reporting absences, and establishes procedures for special category absentees, personnel DFR, and the surrender of military personnel to civilian law enforcement authorities.  It states the unit commander will report absent personnel concurrently to the personnel office, the installation's provost marshal office, deserter control officer, and the military pay office within 48 hours of the commander's inquiry that establishes there is no legitimate reason for the Soldier's absence.  When a deserter is returned to military control, a pay adjustment authorization with information about the deserter will be sent to DFAS-IN and collection for expenses chargeable to the Soldier's pay account are made when the Soldier is returned to a pay status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for remission of his DFAS debt of $15,218.84 was carefully considered.

2.  The evidence of record shows the applicant was AWOL from 22 July 2000 until 13 September 2001 and again from 14 September 2001 until 16 November 2004 when he surrendered to military authorities.  He was in a no-pay status during these periods.

3.  DFAS records show he incurred a $15,218.84 debt as the result of payments he received while in a no-pay status, recoupment of an advance payment, and collection on UCMJ-imposed forfeiture of pay on two occasions.  The evidence of record supports this debt is valid.

4.  Although the applicant disputes receiving any of the payments in question, DFAS records show they were disbursed to his account and the applicant has not provided any corroborating evidence suggesting otherwise.

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 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)                                         AR20140019461



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ABCMR Record of Proceedings (cont)                                         AR20140019461



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