IN THE CASE OF: BOARD DATE: 10 October 2013 DOCKET NUMBER: AR20130001509 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 or cancellation of an indebtedness of $36,246.95. 2. The applicant states, through no fault on his part, he was paid erroneously and it was several months before he noticed the error. He had not noticed the error due to an out of state move and entry into a college. Due to financial hardship he is unable to repay the debt and if it is not remitted he will be forced to consider bankruptcy. 3. The applicant provides copies of two DD Forms 214 (Certificate of Release or Discharge from Active Duty), the Defense Finance and Accounting Service (DFAS) indebtedness notification and audit, and the U.S. Army Human Resources Command (HRC) remission applications and denial. CONSIDERATION OF EVIDENCE: 1. The applicant, a New Jersey Army National Guard (NJARNG) staff sergeant, was mobilized and served on active duty from 19 May 2008 through 21 November 2009. 2. On 6 December 2010, DFAS notified the applicant of an indebtedness in the amount of $39,850.47. An audit of his pay records shows the applicant continued to receive full pay and allowances from the date of his release from active duty on 21 November 2009 through August 2010, a period of nine months. 3. On his initial application for remission of the indebtedness, the applicant states he was working as a commission-based subcontractor and was in significant financial trouble. His only assets were two cars and a rental house that was listed for sale. 4. On 2 July 2012, he submitted an additional request for remission of the debt. On this application he states he is unemployed and can no longer afford the monthly payments to repay his government debt. He was looking into bankruptcy options. He provided a statement wherein he states he relocated from New Jersey to Florida following his release from active duty at which point he also started going to school. While he had opened a new bank account in Florida he was still drawing off the account in New Jersey. He contacted DFAS in the summer of 2010 about overpayment but did not hear back from them until December 2010. In January 2011 he started a one-year repayment plan which he was able to make until his payments jumped from $300.00 to over $1,000.00 per month. During this period he was experiencing under-employment and was having to pay high tuition costs. Following graduation he worked as a self-employed subcontractor but has seen very little work and has a substantial tuition loan debt. He lists his only income as $460.00 per month from a rental house, for which he was making interest-only payments. His total living expenses are shown as $3,123.31. 5. On 4 October 2012, HRC denied his application for remission or cancellation of his indebtedness in the amount of $36,246.95. HRC stated that no grounds exist to remit or cancel the debt based on hardship or injustice. DISCUSSION AND CONCLUSIONS: 1. The creation of this debt is the fault of both the Government and the applicant, in that DFAS continued to pay him full pay and allowances for nine months after his release from active duty and the applicant accepted and spent the money. 2. While a portion of the blame for the creation of this sizable debt is clearly due to the improper processing the applicant's separation financial records, the applicant also bears a significant portion of the blame as well. I t was his responsibility to notify the Government of the erroneous over-payments and not to spend the money. 3. The applicant's justification for the debt, that he wasn't paying attention to the New Jersey account and had spent the monies before he realized the error, is not a valid argument warranting serious consideration. 4. The applicant knew or should have known that he was not entitled to full pay and allowances following his release from active duty. However, he accepted and spent the erroneous payments and has provided no evidence that he made any attempt to halt payments or mitigate the effect of the over-payments or to set aside these monies knowing they were not authorized. 5. While it is regrettable that the applicant is facing financial problems, these problems are more a result his own actions or inactions than the continuation by DFAS of the improper payments. 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) AR20130001509 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130001509 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1