IN THE CASE OF: BOARD DATE: 29 October 2015 DOCKET NUMBER: AR20150003276 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 indebtedness to the government in the amount of $12,200.61 for alleged overpayment of pay and allowances while on active duty in 2008. 2. He states that in 2009 he requested and received an audit of his pay record that found an underpayment of $5,000.00. However, 5 years later, the Defense Finance and Accounting Service (DFAS) claimed that he was overpaid in the amount of $12,200.00. He adds that his only income is his retirement and disability pay. 3. He provides: * DFAS letters, dated 3 June 2008, 8 October 2014, 15 December 2009 and 23 December 2014 * Extract from Department of Defense Financial Management Regulation * Applicant's Request for Waiver of Debt, dated 1 September 2014 * Email * Statement of Military Leave Account CONSIDERATION OF EVIDENCE: 1. After having prior enlisted service, on 28 December 1984, the applicant was appointed as an U.S. Army Reserve (USAR) officer. 2. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served on active duty from 8 February 1985 to 31 March 1995. He was credited with 10 years, 1 month, and 23 days of net active service this period and 9 years, 11 months, and 29 days of total prior active service. He was honorably retired on 31 March 1995, in the rank of captain (CPT)/O-3. 3. A subsequent DD Form 214 shows on 13 May 2007, he was recalled to active duty in support of Operation Noble Eagle. He served 1 year on active duty and he was honorably released from active duty (REFRAD) on 12 May 2008. 4. On 3 June 2009, Retired and Annuity Pay, DFAS, notified the applicant that his pay was being adjusted based on a correction of his rank from CPT/O-3 to "CPTE/23" (also known as "CPT/O-3E"). The total underpayment amount from 1 April 1995 through 28 February 2009 was listed as $4,500.01. 5. On 1 September 2014, he requested that DFAS waive his debt. He said he recently received a letter from DFAS informing him that he owed a debt in the amount of $12,200.00. He stated this was a complete surprise to him since it was more than 5 years since his REFRAD and his request for an audit and computation of his pay entitlements in May 2008. He further stated he is 100 percent (%) Social Security Administration (SSA) disabled, 10% Department of Veterans Affairs disabled, and non-employable because of physical injuries. He was inclined to believe that DFAS made some errors and requested a waiver of any debt owed to the government. 6. On 8 October 2014, DFAS responded to the applicant's inquiry regarding an audit of his debt in the amount of $12,200.61. DFAS representative stated: a. The gross debt in the amount of $11,818.78 was due to recoupment of pay and allowances for the period 13 May through 30 June 2008. This was after the applicant's release from active duty on 12 May 2008. b. Records revealed a payment in the amount $2,740.64 was disbursed to the applicant on 4 June 2008, for the period 13 May through 31 May 2008. A payment in the amount $2,804.69 was disbursed to the applicant on 13 June 2008, for the period of 1 June through 15 June 2008. Lastly, records revealed a payment in the amount of $2,804.69 was disbursed to the applicant on 1 July 2008, for the period of 16 June through 30 June 2008. c. The debt of $381.83 was due to leave taken from 8 May to 8 May 2008 which resulted in 1.0 day of excess leave, including 0.5 day of non-accrual. There was no entitlement to pay and allowances during periods of excess leave and collection was required. d. In reference to the applicant's claim of being 100% disabled and his statement indicating that any deduction from his retirement and/or medical disability would present an extreme hardship, he was advised to contact the Customer Care Center for assistance. 7. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) gives instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army. The regulation states the immediate commander will assist the Soldier with the DA Form 3508 (Application for Remission or Cancellation of Indebtedness). Paragraph 3-1d states the commander will recommend approval, in whole or in part, or disapproval in a formal memorandum. Reasons will be provided for the recommendation and other information as follows: * State how remission or cancellation would or would not serve the best interests of the U.S. Government * State the effect on the Soldier's ability to discharge credit obligations and to provide for family members, if any * Point out items that cannot be confirmed * Show if the Soldier * Is at fault for being in debt to the U.S. Army * Could have prevented the debt to the U.S. Army * Could have been aware of the Army's policy in this area in view of past or present military occupational specialty, rank, years of service, or prior experience * Acted properly in trying to correct the error * Acted in good faith DISCUSSION AND CONCLUSIONS: 1. The applicant’s request for remission of the debt he incurred as a result of being paid active duty pay and allowances was carefully considered. However, by regulation the member must provide clear and convincing evidence of injustice or hardship to support approval of an application for cancellation or remission of indebtedness. 2. Evidence of record shows the applicant was recalled to active duty on 13 May 2007 and REFRAD on 12 May 2008. As he was informed by DFAS, he incurred a debt in the amount of $12,200.61 for pay and allowances he received in error from 13 May through 30 June 2008, after his REFRAD, as well as 1 day of excess leave. 3. There is no evidence and the applicant did not provide any to dispute the DFAS computation of the amount owed. His argument is that DFAS notified him of the debt 5 years after his underpayment of $5,000.00. It is unknown why it took DFAS 5 years to conduct an audit and determine the applicant owed the government $12,200.61. However, the applicant was a CPT with over 20 years of service, and it is reasonable to expect that he would have known he was not entitled to active duty pay and allowances after he was REFRAD. 4. He also argues he is a 100% disabled and payment of the $12,200.61 would cause undue hardship. However, he provides no documentation to verify his income and expenses to support this claim. Additionally, he was advised to contact the Customer Care Center (at DFAS) for assistance and there is no indication that he acted on that advice. 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) AR20150003276 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003276 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1