BOARD DATE: February 16, 2017 DOCKET NUMBER: AR20150014389 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ __X______ __X__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: February 16, 2017 DOCKET NUMBER: AR20150014389 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. BOARD DATE: February 16, 2017 DOCKET NUMBER: AR20150014389 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 the reduction of a debt resulting from a duplicate payment for accrued leave from $1,462.85 to $692.57. 2. The applicant states the Defense Finance and Accounting Service (DFAS) states the debt is due to a duplicate payment which was made on 25 May 2007. He did not realize this was a duplicate payment at the time. However, he only received $692.57 on this date not $1,462.85 as DFAS indicates. 3. The applicant provides his May 2007 Leave and Earnings Statement (LES) and DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 24 May 1998. He entered active duty on 25 May 1998. 3. He was promoted to captain in December 2001, honorably released from active duty on 24 May 2002, and transferred to the U.S. Army Reserve Control Group (Reinforcement). 4. He entered active duty on 15 January 2006. He resigned his commission and he was honorably discharged on 12 June 2006. His DD Form 214 shows he completed 4 months and 28 days of active service. 5. He provides his LES for the period covering 25 May 2007. This LES shows he had an unpaid debt in the amount of $1,462.85. A breakdown of his debt is also shown. 6. On 9 January 2014, DFAS wrote to the applicant in response to his inquiry regarding an audit of his debt to the U.S. Government in the principal amount of $1,462.85. DFAS explained this debt remains valid due to the reasons below. a. The debt in the amount of $1,462.85 is the remaining uncollected balance of an overpayment due to an adjustment of his accrued leave which resulted in a duplicate payment for an active duty tour from 1 to 12 June 2006, which was paid on 15 June 2006 and again on 25 May 2007, as shown in his Master Military Pay Account, dated June 2006 and June 2007 (DFAS provided him with enclosures showing the payments). This duplicate payment is the reason for the debt. He is not entitled to the duplicate payment he received on 25 May 2007. The original debt reason provided to him was incorrect; however, this oversight does not invalidate the debt. b. The fact that he felt the debt was not his fault and was caused by an error on the part of the Government does not preclude collection of the amount owed. The Comptroller General has ruled in similar cases that the United States is not bound by incorrect statements of its agents and employees, and in the absence of specific statutory authority, is not liable for the negligent or erroneous acts of its officers, agents or employees even though committed in the performance of their official duties. c. If he still felt that an injustice had occurred, a possible avenue of relief was to petition for a waiver of indebtedness. Applying for a waiver would not suspend the collection of this debt. If he received a favorable consideration by the waiver department, any money over-collected against his debt would be refunded. If he chose to submit a waiver, he could complete the DD Form 2789 (enclosed) and forward this form and any supporting documentation to DFAS-Indianapolis. REFERENCES: The Comptroller General has ruled in similar cases that the United States is not bound by incorrect statements of its agents and employees, and in the absence of specific statutory authority is not liable for the negligent or erroneous acts of its officers, agents or employees even though committed in the performance of their official duties. DISCUSSION: The applicant erroneously received an overpayment due to an adjustment of his accrued leave which resulted in a duplicate payment for active duty from 1 to 12 June 2006, which was paid on 15 June 2006 and again on 25 May 2007. This duplicate payment is the reason for the debt. The amount is also a valid amount and is confirmed by his DFAS pay records. He was not entitled to the duplicate payment that he received for accrued leave on 25 May 2007. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014389 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014389 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2