BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150003915 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, in effect, remission of a debt incurred as a result of his discharge from the military service and removal of the information related to the debt from credit bureau reporting. 2. The applicant states he was not provided timely notification of the debt and, in response to his inquiries, there have been significant inaccuracies regarding the debt in question. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) reissued on 13 July 2009. 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 enlisted in the U.S. Army Reserve on 29 August 2002 for a period of 8 years and he further enlisted in the Regular Army (RA) on 13 June 2003 for a period of 3 years. Upon completion of training he was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist). a. He deployed to Iraq from 5 January 2004 to 16 April 2004 and also from 1 September 2005 to 6 January 2006. b. He was promoted to sergeant (SGT)/pay grade of E-5 on 1 October 2005. 3. A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant reenlisted in the RA on 27 December 2005 for a period of 4 years. Section B (Agreements), block b (Remarks), shows he reenlisted for: * Current Station Stabilization Reenlistment Option (B000), Reenlistment Control Number (RCN): 2193359 * Selective Reenlistment Bonus (SRB) 1.5A, 6 Months Previously Obligated Service, 42 Months Additional Obligated Service * No Waiver * First Reenlistment * Lump Sum Payment Authorized in accordance with MILPER (Military Personnel) Message 05-239 4. A DA Form 4789 (Statement of Entitlement to SRB), completed and signed by the applicant and the reenlistment officer on 27 December 2005, explains the conditions under which continued entitlement to unpaid installments of the bonus may be terminated and the unearned portion of advanced bonus payments recouped. It shows, in pertinent part, "I agree to complete this period of service. I have been advised and understand that if I do not complete the full period of service, or if I do not remain technically qualified in MOS 'NA' [Not Applicable], I will not get any more installments of the bonus, and I will have to pay back as much of the bonus as I already received for the unexpired part of the period of obligated service." 5. On 3 October 2006, charges were preferred against the applicant for conspiring with two other Soldiers to commit larceny of government property of a value over $500 and stealing government funds of a value greater than $500. 6. On 28 November 2006, the applicant submitted a request for discharge under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 10 (Discharge in Lieu of Trial by Court-Martial). He was reduced to private/pay grade E-1 effective 30 November 2006 and discharged on 21 December 2006. 7. On 11 July 2007, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade and a change to the narrative reason for his discharge. a. His argument to the ADRB, in pertinent part, asserted that his counsel advised that the prosecution had very limited evidence against the applicant, the other two Soldiers admitted that they had done wrong, and that the applicant had no involvement in such activity. b. On 11 July 2008, the ADRB determined (in a three-to-two vote) that the character of the applicant's discharge was proper and equitable and (by unanimous vote) that the narrative reason for his discharge was equitable. Accordingly, the ADRB voted to deny relief. 8. On 17 March 2009, the applicant applied to the ABCMR for an upgrade and a change to the narrative reason for his discharge. His argument, in pertinent part, asserted that he had no involvement in the alleged incidents which transpired prior to his decision to resign. He added that he did not want to be responsible for destroying the careers and lives of those he had served with for years when he had little or no information regarding their previous circumstances. 9. The ABCMR considered his application in Docket Number AR20090003511. a. The analysis of his case included a review of the records of the two other Soldiers who were accused of purchasing merchandise on a government purchase card and returning it for credit on gift cards. The review revealed that both of the other Soldiers separately admitted guilt to the offenses and further admitted that the applicant was not involved in their activities. b. The Board concluded that the applicant was not knowingly a part of the conspiracy and was an unwilling and unknowing part of the larceny that occurred. c. On 9 July 2009, based on his exemplary record of service and the available evidence, the Board determined (by unanimous vote), in the interest of justice, to upgrade the applicant's discharge to fully honorable based on Secretarial Authority (AR 635-200, paragraph 5-3) and to restore his rank/grade to SGT/E-5. d. Accordingly, on 13 July 2009, the ABCMR voided his previously issued DD Form 214 and issued the applicant a corrected DD Form 214. 10. The applicant's DD Form 214 shows he entered active duty this period on 13 June 2003 and that he was honorably discharged on 21 December 2006 under the provisions of AR 635-200, paragraph 5-3, based on Secretarial Authority. He had served 3 years, 6 months and 9 days of total active service this period. 11. Review Boards Agency, Support Division, St. Louis, MO, memorandum, dated 20 July 2009, informed the applicant that his records have been corrected in accordance with the findings of the ABMCR. The memorandum shows, in pertinent part, "New separations documents and discharge certificate evidencing the correction are enclosed. Please destroy any previously issued DD Form 214, Certificate of Release or Discharge from Active Duty, and any previously issued DD Form 215, Correction to DD Form 214, Certificate of Release or Discharge from Active Duty." 12. In the processing of this case, information was requested from the Defense Finance and Accounting Service (DFAS) relating to the applicant's debt. a. The DFAS official stated that DFAS record systems show "the debt is for an unearned bonus and a demotion." b. The official stated that the applicant was notified of the debt on or about 22 February 2013. In November 2013 and January 2014, he contacted DFAS via email message requesting removal of the debt from credit bureau reporting. He was informed that DFAS could not remove the debt from credit bureau reporting. Since the applicant had failed to pay the debt, it was transferred to the U.S. Treasury Offset Program for collection of the payment from his tax returns. c. On 21 January 2014, the DFAS Waivers Section received an application for waiver. As part of the application, the applicant was required to agree that the debt is valid and that he owes the debt. The DFAS Waivers Section determined that his amount of $8,439.87 was ineligible for waiver. In February 2014, the applicant's tax refund was confiscated. d. In August 2014, the applicant contacted DFAS requesting removal of the debt from credit bureau reporting based on an understanding he had with the Waivers Section. [There is no information pertaining to any understanding.] In September 2014, he again contacted DFAS about his request. He was informed that the debt must be paid in full before DFAS could take action on his request. e. On 3 February 2015, the applicant once more contacted DFAS requesting removal of the debt from credit bureau reporting. Again, he was informed that the debt must be paid in full before DFAS could take action on his request. 13. On 31 March 2015, the applicant was provided a copy of the information provided by DFAS and, on or about 6 April 2015, he provided his response. a. He states, upon correction of his records by the ABCMR, "I was advised to disregard any and all previous correspondence from the Army. I did not receive any correspondence nor have I ever resided at the location on record." b. He acknowledges that he is aware of the debt and from where it derived. However, he was not aware of the debt until it was attached to his credit profile 7 years after his discharge. c. He was told two different things; to request remission of the debt or request waiver of the debt. Both his 2014 and 2015 tax refunds were confiscated and the debt amount is not accurate. d. He adds that his discharge and demotion were reversed because the actions were unjust. In addition, he was advised that there would not be any further mention of the matter in his military records. e. He concludes by stating that perhaps he was just misinformed. He adds he will continue to pursue correction of the matter through appropriate channels. 14. Department of Defense Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), chapter 2 (Repayment of Unpaid Portion of Bonuses and Other Benefits), paragraph 020204 (Conditions under review by the Secretary of the Military Department), provides that under circumstances not specifically mentioned in this chapter, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on the following: a. contrary to a personnel policy or management objective; b. against equity and good conscience; or c. contrary to the best interest of the United States. 15. Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that a debt incurred as a result of his discharge from the military service should be remitted and that information related to the debt should be removed from credit bureau reporting. 2. Records show the applicant reenlisted in the RA on 27 December 2005 for a period of 4 years with a lump sum payment of an SRB. On 28 November 2006, he requested discharge for the good of the service, he was reduced to pay grade E-1 on 30 November 2006, and discharged effective 21 December 2006. Thus, he did not complete the terms or period of service for the SRB. As such, he was required to pay back as much of the bonus as he had already received for the unexpired part of the period of obligated service. 3. On 9 July 2009, as a matter of justice, the ABCMR corrected the applicant's records by upgrading the character of his service to fully honorable, changing the narrative reason for his discharge to Secretarial Authority, and restoring his rank/ grade to SGT/E-5. 4. The evidence of record shows that in early 2013, DFAS established a debt against the applicant for an unearned bonus and a demotion in pay grade. a. The applicant applied for waiver of the debt; however, DFAS determined that his amount of $8,439.87 was ineligible for waiver. b. The applicant requested removal of the debt from credit bureau reporting; however, DFAS cannot remove the debt from credit bureau reporting until the debt is paid in full. c. The evidence of record shows the applicant's 2014 and 2015 tax returns were confiscated by the U.S. Treasury Offset Program. 5. Notwithstanding the approved voluntary discharge, based on the evidence of record and given the reasons for correcting his administrative discharge, it is reasonable to conclude that the applicant would have continued to have served satisfactorily on active duty for the remainder of his RA reenlistment obligation. As such, he would have satisfied the terms for the SRB with entitlement to the lump sum payment. Thus, in this case, it would be appropriate to correct the applicant's records by cancelling the debt related to the bonus and demotion. 6. At least one of the reasons behind the barring statute was not of major importance in this case. The applicable records were readily accessible and the applicant's case was not difficult to prove. BOARD VOTE: ___X_____ ___X_____ __X__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he satisfied the terms for the Selective Reenlistment Bonus with entitlement to the lump sum payment while serving in pay grade E-5 and cancelling any debt he may have incurred related to the bonus and demotion. 2. As a result of this correction, the Defense Finance and Accounting Service shall be notified of the Board's determination and conduct a review of the individual's military pay account to determine his entitlement to pay and allowances for the period of service under review; notify him of the results of the review; and (if applicable) pay him all back pay (i.e., pay and allowances, less any withholdings and/or deductions) due as a result of this correction. In addition, the Defense Finance and Accounting Service should take such actions as are necessary to notify the U.S. Treasury and/or Credit Bureau reporting agencies to remove the debt from the applicant's records. _________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) AR20150003915 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003915 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1