IN THE CASE OF: BOARD DATE: 8 December 2015 DOCKET NUMBER: AR20150002468 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: The applicant defers his request and evidence to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests, on behalf of the applicant, cancellation of a debt resulting from an alleged overpayment of pay and allowances and refund of any payments already made. 2. Counsel states in a 4-page notice of disagreement that the applicant disputes both the existence and the amount the alleged debt. a. The applicant was discharged from the army due to a general court-martial dated 28 April 2010. As a result of the court-martial, the applicant was sentenced to 36 months of confinement, reduced in grade to pay grade E-1, fined $4,000, and given a bad-conduct discharge. He was placed in confinement and administratively separated from the military in May 2010. He was incarcerated at Fort Lewis, WA through approximately May 2012. b. The applicant learned that the government was pursuing a debt collection against him in July 2013, more than a year after his release from confinement. The applicant denies prior notice of the debt and subsequent materials indicated that the collection notices were sent to him at an address in Fort Leavenworth, Kansas, even though he had never been to Fort Leavenworth or the State of Kansas. c. The applicant admits he owed the government $4,000 resulting from the fine imposed by his court-martial. Beyond the amount of the fine, he disputes the existence and amount of any alleged debt owed to the government as well as any overpayments that may be reflected by his military records. d. The collection of the debt is currently being pursued on behalf of the government by Performant Recovery, Inc. In February 2014, the applicant requested a hearing to contest the debt. Although the applicant was expecting that it would be an actual hearing, he was never given an opportunity to examine or respond to the evidence of the alleged debt. A hearing official conducted a closed-door review of the applicant’s debt files and unilaterally determined that the alleged debt was valid. A copy of the decision of the hearing official is attached as exhibit 2. The applicant was never given an opportunity to review that documents relied upon by the hearing official in support of the debt. He has never seen any proof of the alleged debt, which he disputes. e. The findings of the hearing official are vigorously disputed by the applicant. One of the primary points of dispute is whether the military overpaid or continued to pay the applicant during his period of incarceration. According to the decision issued by the hearing official, it appears that the bulk of the applicant’s alleged debt is derived from and alleged overpayment of wages and allowances from 12 May 2010 to 30 October 2010. f. The decision of the hearing official stated that the applicant was placed in confinement on 28 April 2010 and administratively separated from the military on 12 May 2010; however, he continued to receive pay and allowances through 30 October 2010. Collection of payments erroneously paid to the applicant resulted in a debt of $10,015.99. g. The applicant disputes and denies the alleged overpayment from 12 May 2010 to 30 October 2010. During this period the applicant was incarcerated at Fort Lewis, WA and did not have access to his bank account, which was located at Fort Hood, TX. The applicant denies that he received any pay or allowances during this time. The applicant has never been shown any proof that the alleged overpayments were actually made. In attempting to investigate this matter, he obtained copies of his bank records from Fort Hood, TX. The bank records do not appear to show any of the alleged overpayments. He also made phone calls to his bank, but it was his understanding that they did not have any record of the alleged $10,000 in overpayments from the military. h. The applicant would acknowledge liability for the $4,000 fine imposed by his court-martial; however, he believes that he has already made sufficient payments to satisfy any debt resulting from that fine, His pay stubs show garnishment of wages by the government. In 2013, the government garnished a total of $1,429.85 from the applicant. In 2014, the government garnished $1,223.56, for a combined total of $2,653.41 in wage garnishments. The applicant disputes the propriety of these garnishments. i. In addition to the wage garnishments, the government took the applicant’s 2013 tax refund, in the amount of $1,047.35 as a payment towards the alleged debt. Combined with the wage garnishment, the payments made by the applicant total $3,700.76. j. In addition to the payments already made, it appears that the applicant was entitled to a credit from a refund of taxes, withholdings, meal deduction collections, and Servicemembers’ Group Life Insurance premiums. According to the decision of the hearing official, the credit for these items reduced the applicant’s debt from $10,015.99 to $3,004.53, a difference of $7,011.46. If the amount of $7,011.46 is added to the above payments of $3,700.76 made by the applicant, then it appears that the applicant has paid $10,712.22 towards what was originally only a $4,000 fine. k. The applicant is requesting a hearing and all other relief potentially available to him on the foregoing issues. If the applicant’s military record shows that such payments were made, then he believes his record is in error and requests such information be corrected and removed from his record. l. It appears that the government has received an overpayment from the applicant in the amount of at least $6,712.22. The applicant demands a return of this overpayment which he contends was wrongfully taken from him by the government. The applicant reserves the right to demand additional repayment should further investigation reveal that he had overpaid more than this amount. 3. Counsel provides: * 4-page Letter of Disagreement * 2 letters from the Defense Finance and Accounting Service (DFAS) * bank records * U.S. Wage Garnishment Order * paystubs * letter regarding tax refund 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 having had prior enlisted service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 21 May 2008. 3. On 7 October 2010, consistent with his pleas, he was convicted by a general court-martial of: * one specification of being absent without leave from 17 February 2010 through 27 February 2010 * one specification of failing to obey a lawful order * stealing military property of a value of over $500.00 on divers occasions between on or about 2 December 2009 and on or about 27 February 2010 * four specifications of credit card fraud * one specification of larceny * unlawfully entering a government structure with intent to commit a criminal offense 4. The court sentenced him to be reduced to the grade of private (E-1); forfeiture of all pay and allowances, a fine of $4,000.00, confinement for 42 months, and a bad conduct discharge. The sentence was adjudged on 28 April 2010. 5. General Court-Martial Order Number 73, issued by Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK, dated 26 April 2011, shows the findings of guilty and the sentence were affirmed. 6. On 29 June 2011, Headquarters, U.S. Army Garrison, Fort Sill, Fort Sill, OK, published Orders 180-1329 ordering his discharge from the Army. Accordingly, he was discharged from the Army on 7 July 2011. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial, other. This form further shows the applicant's character of service as bad conduct and that he completed 1 year, 10 months, and 26 days of net active service this period. This form also shows he had lost time from 17 February 2010 through 27 February 2010 and from 28 April 2010 through 7 July 2011. 7. On 6 December 2011, the DFAS informed the applicant that he owed a debt of $7,004.53 due to overpayment of pay and allowances while he was AWOL from the military from 17 February 2010 to 26 February 2010. 8. It appears he contested/disputed this debt with DFAS. Furthermore, it appears in connection with referring his case to a collection agency, DFAS officially notified him by letter that after a review of his account, they determined the amount of $5,273.04 remained a valid debt. The debt was due to payments he had received after he entered into a no-pay status on 12 May 2010. He continued to receive pay allowances through 30 October 2010. He also had a fine of $4,000.00 in connection with his court-martial sentence. 9. Documents provided by DFAS show the applicant continued to received pay and allowances while he was in a no-pay status. DISCUSSION AND CONCLUSIONS: 1. The applicant was convicted by a court-martial that sentenced him to confinement, reduction, a $4,000 fine, and a bad-conduct discharge. 2. He entered a no-pay status on 12 May 2010. 3. It appears that subsequent to his court-martial conviction he continued to receive pay and allowances through October 2010, as shown on documents provided by DFAS. 4. Upon discharge from the Army, DFAS officials computed his entitlements and subtracted his deductions and payments. The net amount is what he owed. DFAS officials advised him of the reason for this debt. He disputed it but upon review, DFAS determined it remained a valid debt. 5. The applicant has not provided evidence to confirm this debt is in error or unjust. 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) AR20150002468 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002468 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1