ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 June 2019 DOCKET NUMBER: AR20170012803 APPLICANT REQUESTS: cancellation of his debt to the Government in the amount of $4,098.44 for overpayment of Basic Pay, Basic Housing Allowance (BAH) and Cost of Living Allowance (COLA) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum - Notification of Debt, dated 20 December 2016 * Memorandum - Notification of Debt Appeal, dated 27 December 2016 * MyPay Leave and Earnings Statement, 1-31 Dec 2016 * Memorandum - Debt Appeal, dated 3 January 2017 * DA Form 3508 (Application for Remission or Cancellation of Indebtedness), dated 3 January 2017 * DA Form 2823 (Sworn Statement), dated 10 January 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was never notified of the debt that incurred in 2008. 3. The applicant provides: a. Notification of Debt memorandum from the Joint Force Headquarters, Massachusetts National Guard, which states that due to administrative errors, the demotion orders reducing the applicant from the grade of E7 to E6 was never submitted to the pay branch. During the period of 6 June 2008 to 7 October 2008, the amount owed in basic pay and allowances and BAH rate protection from 8 October 2008 to 31 December 2008 was $4,098.44 (see attached). b. Notification of Debt Appeal memorandum submitted by the applicant which states he believed that he satisfied the debt in full in October 2009 based on a mutually agreed upon payment plan and monthly payroll deductions. He adds that he was notified of overpayment for Submarine Pay and satisfied that debt in 2009. He further states that he received notification of the debt on 20 December 2016. He feels that the errors in overpayment, lack of notification of the debt, lack of formal counseling in 2008 and the lack of clarification of what debt was owed is in no fault of his own (see attached). c. A letter in support of the debt appeal, from his commanding officer, which states the applicant was informed on August 2016 of an unpaid debt in the amount of $3,820. He adds the applicant was under the impression the debt was repaid in October 2009, however, the debt that was paid was for Recruiter Incentive Pay. d. DA Form 3508 (Application for Remission or Cancellation of Indebtedness), requesting for remission or cancellation of his indebtedness based on hardship and injustice. This form also shows he calculated his monthly deficit as $125. e. DA 2823 (Sworn Statement) which states he was administratively reduced from the grade of E7 to E6 effective 6 June 2008. Four months later, on 7 October 2009, he was promoted to E7. Shortly thereafter, he was notified by leadership that during the 4-month period as an E6, he received pay and allowances as an E7. According to the applicant, he took responsibility and explained that he should have caught the error. However, he contends that a payment plan was agreed upon for $2,900. He takes exception to the government’s demand that he repay the debt almost 8 years after what he thought was repayment, but was actually Submarine Pay (see attached). 4. A review of the applicant’s service record shows: a. He had prior enlisted service in the Regular Army and joined the Army National Guard (AGR) on 15 March 1990 in the rank/grade of Specialist/E4. b. Based on demotion orders, #160-001, dated 8 June 2008, the applicant was demoted to Staff Sergeant (SSG)/E6, effective 6 June 2008. c. Based on promotion orders, #292-020, dated 21 October 2008, the applicant was promoted to the Sergeant First Class (SFC)/E7 effective 7 October 2008. d. The applicant was discharged on 31 August 2018. His DD Form 214 shows he had sufficient service for retirement and was discharged with an honorable characterization of service, under provisions of National Guard Regulation (NGR) 600-5, Chapter 6 (Separations). He completed 15 years, 8 months and 19 days of active service. a. 5. On 3 May 2017, the U.S. Army Human Resources Command (HRC) disapproved the applicant’s request for remission or cancellation of indebtedness stating a review determined no grounds exist to remit or cancel the debt based on hardship and/or injustice. 6. By regulation, Army Regulation (AR) 600-4 (Remission or Cancellation of Indebtedness), a soldier indebted to the U.S. Government may request that the debt be remitted or canceled on the basis of hardship, injustice, or both. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions were carefully considered. The applicant reduced in rank for a period in time and still received pay and allowance at the higher rank. The applicant contends he thought he paid the debt; however, he later learned the debt he paid was for another concern. The record and evidence provided shows he was not notified of the BAH debt at the time of the other debt, and therefore could not have thought he paid it. One member voted to keep the debt as he could not have thought he paid it when he paid another debt, when DFAS did not capture his debt at that time. The majority of the Board granted relief concluding the debt was of no fault of the Soldier as the reduction transaction in his record and pay account should have been processed in a timely manner. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 cancelling his debt for overpayment of pay and allowances resulting from a reduction in grade, and reimbursement of all monies already recouped. 6/21/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 600-4 (Remission or Cancellation of Indebtedness), in effect at the time, provides policies and guidance for remission or cancellation of indebtedness to the U.S. Army. a. Paragraph 1-12 states the regulation determines injustice and hardship based on the information received and considers factors such as: * the Army’s policy in the area of indebtedness to the U.S. Army * the soldier’s awareness of policy and procedures * the soldier’s monthly income and expenses * the soldier’s contribution to the indebtedness to the U.S. Army by not having the situation corrected b. Paragraph 1-13 states the application must contain evidence that the applicant did not know or could not have known of error and the applicant inquired of a proper authority and was told the payment was correct. c. Chapter 1 of this regulation provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army. Applications must be based on injustice, hardship, or both. //NOTHING FOLLOWS//