BOARD DATE: 18 August 2020 DOCKET NUMBER: AR20180002931 APPLICANT REQUESTS: Correction of his record to show: * cancellation/remission of a Defense Finance and Accounting Service (DFAS) debt in the amount of $8,227.03 * payment of Temporary Duty (TDY) expenses related to travel in December 2005 * pay and allowances in the rank/grade of master sergeant (MSG)/E-8 for 3-years and 30 days of excess incarceration following his reduced sentence on his appellant review hearing APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: a. DD Form 149 (Application for Correction of Military Record) (Application 1) * DFAS letter, dated February 1996 * DFAS letter, dated 15 May 1996 * Account statement, dated 17 June 1996 * Internal Revenue Service (IRS) letter, dated 14 July 1997 * U.S. Army Legal Service Agency letter, dated 25 May 1999 * Memorandum, Subject: Assignment to Unaccompanied Personnel Housing (UPH), dated 31 January 2000 * DFAS letter, dated 16 March 2000 * Leave and Earnings Statement (LES), dated 30 April 2000 * Memorandum, Subject: Settlement of Account, dated 20 June 2000 * Self-authored letter, dated 9 January 2009 * January 2017, DFAS account statement, dated 10 January 2017 * DFAS letter, dated 16 January 2018 * Self-authored letter, dated 2 February 2020 * Debt worksheet * Military pay voucher * DA Form 2A (Personnel Qualification Record) * U.S Court of Appeals case for withheld pay * Pay computation worksheet * Memorandum, Subject: U.S. Disciplinary Barracks Form 96 * Worksheets b. DD Form 149 (Application for Correction of Military Record) (Application 2) * Orders Number 256-13, dated 13 September 2005 * DD Form 1610 (Request and Authorization for TDY Travel of Department of Defense (DOD) Personnel), dated 5 December 2005 * DD Form 1351-2 (Travel Voucher and Subvoucher), dated 15 December 2005 * Excerpt, Joint Travel Regulation (JTR) * Flight itinerary * Boarding pass * Fax cover sheet * Claim return * SF 1199A (Direct Deposit Sign-Up Form) * Debt and claims information sheet * Self-authored letter, dated 21 February 2018 c. DD Form 149 (Application for Correction of Military Record) (Application 3) * Orders Number 256-13, dated 13 September 2005 * General Court-Martial Order * Self-authored letter, dated 9 January 2009 * Self-authored letter, dated 26 February 2018 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 (ABCMR) 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: a. As it pertains to his first application, he was audited three times from 1996 to 2007 while incarcerated at the U.S. Disciplinary Barracks, Fort Leavenworth, KS, and while on appellant leave. The inmate finance at Fort Leavenworth and DFAS cleared him of all debt. They paid him for excess leave upon his release in 2001 with paperwork that shows nothing owed to the Government. b. As it pertains to his second application, he went on authorized travel granted by DD Form 1610, dated 5 December 2005. He submitted his claim twice to DFAS through the Fort Leavenworth finance travel section by fax and by registered mail. He communicated with his unit he was assigned to while at Fort Leavenworth. He called on 9 January 2009, and spoke to a Fort Leavenworth finance official and resubmitted the paperwork to the official. In January 2017 he called Fort Leavenworth finance again and spoke to another finance official who resubmitted the documents again for him in February 2017. The official wrote back to him by email in January 2018 and told him his claim was denied due to the age of the submission and to petition the Board. c. As it pertains to his third application, he was sentenced to 10-years confinement and served all of the sentence until his release in December 2001 from the U.S. Disciplinary Barracks, Fort Leavenworth. He was still on appellant leave and active duty fighting his sentence until he was awarded a sentence rehearing in December 2005. Lieutenant General (LTG) P- reduced his sentence to seven-years and credited him all of his confinement time plus an additional 30 days against his sentence to confinement. 3. A review of the applicant's official records shows the following: a. On 27 July 1971, the applicant enlisted in the Regular Army and served continuously until his court-martial. b. On 1 February 1996, he was arraigned by General Court-Martial convened by the Commander, Headquarters, 4th Infantry Division, Fort Carson, CO, and was tried for violating the Uniform Code of Military Justice (UCMJ). c. The court sentenced him to reduction to the lowest enlisted grade of private (PVT)/E-1, confinement for 10 years, forfeiture of all pay and allowances, and upon completion of confinement, separation from the service with a dishonorable discharge. d. On 30 May 1996, the convening authority approved and ordered the sentence executed, except the part of the sentence extending to a dishonorable discharge. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. e. The applicant's records are void of a final decision rendered by the U.S. Army Court of Military Review affirming or approving the findings of guilty and the sentence. f. On 15 December 2005, DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was dishonorably discharged from active duty by reason of court-martial. Item 4a (Grade, Rate or Rank) shows PV1. g. On 7 June 2006, General Court-Martial Order, issued by Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth, pursuant to Article 66, UCMJ, the sentence as promulgated in General Court-Martial Order Number 2, Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth, dated 19 March 2001 was set aside on 5 July 2005, by the U.S. Army Court of Criminal Appeals and a rehearing was authorized. The findings of guilty were affirmed pursuant to Court-Martial Convening Order Number 16 this headquarters dated 28 October 2004 a rehearing on sentence was convened before a General Court-Martial at Fort Leavenworth KS. Sentence adjudged on 15 December 2005; reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for nine years and a dishonorable discharge. Only so much of the sentence as provides for reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for seven years, and a dishonorable discharge are approved and except for that part of the sentence extending to a dishonorable discharge will be executed. The accused would be credited with all confinement served since 1 February 1996, the date of his initial sentence. The accused would also be credited with 30 days of confinement against the sentence of confinement. 4. The applicant provides: a. As it pertains to application number 1: (1) DFAS letter, dated February 1996, showing the applicant requested relief of the interest, administrative, and penalty fees accessed to his indebtedness of $1,014.07. His request would be forwarded to customer service. (2) DFAS debt letter, dated 15 May 1996, that states in pertinent part, a review of your military pay account after your separation indicates an indebtedness to the DOD. The enclosed billing statement contains a specific explanation. (3) DFAS account statement, dated 17 June 1996, showing the applicant had a debt of $1,018.65 due to overpayment of mid-month pay received in February 1996, which was not properly computed in his final pay at separation. (4) IRS letter wherein the applicant was informed all or part of his overpaid tax of $1,059.98 was applied to a DFAS debt he owed at the time. (5) U.S. Army Legal Services Agency letter wherein appellate counsel submitted a letter on behalf of the applicant for unlawful forfeitures of pay and allowances and/or premature reductions in grade. She claimed the applicant should not have suffered any forfeitures of pay and allowances or reductions in grade until the convening authority took action on the sentence adjudged. She requested DFAS to audit the applicant's account and reimburse him for any unlawful forfeitures of pay and allowances and premature reduction in grade. (6) Memorandum, Subject; Assignment to UPH wherein the applicant was assigned to a Fort Leavenworth address, effective on 31 January 2000. (7) DFAS letter, dated 16 March 2000, wherein the applicant was informed that the DFAS, Cleveland Center, Garnishment Operations had been served with an income holding order for child support from the. Payments of $2,036.49 not to exceed 60 percent of his disposable earnings would be remitted. (8) LES showing the applicant's entitlements for the pay period ending on 30 April 2000, in the rank of MSG. (9) Memorandum, Subject: Settlement of Account showing the applicant's pay account was audited through 20 April 2000 and the amount of 0.00 was paid to the applicant. He had a remaining indebtedness of $2,408.23. This letter also informed the applicant the computation was completed with information available at the present time. Any late input of indebtedness by the Soldier's prior duty station or other agencies will be reflected on his final separation computation by DFAS-DE Debt Management. Accordingly, any credits to reduce his debt will also be reflected on his final separation computation. (10) Self-authored letter pertaining to his TDY packet wherein he stated he was including a copy of the fax he had sent to his first sergeant. He had his orders, two boarding passes, DD Form 1610, taxi receipts, and baggage claims. He signed other forms to reissue the pay check that was lost. He was pleased to hear the pay was for MSG and it included basic allowance for quarters and separate rations. (11) DFAS account statement, dated 10 January 2017, wherein the applicant was informed by DFAS his debt of $8,327.03 was due to entering a no pay status due to military confinement 1 February 1995 to 12 January 2000 and 21 April 2000 to 20 December 2001. His basic allowance for quarters debt was due to an overpayment of that entitlement from January – February 2000. (12) DFAS debt letter which informed the applicant his account balance was now $8,698.02 after interest and administrative fees, and the account was past due. (13) Self-authored letter that states: a. He was very much surprised to receive the letter of debt from DFAS on 19 January 2017. It has been 16 years since he was at the U.S. Disciplinary Barracks at Fort Leavenworth. He was audited upon his release and was paid the difference of his debt and the leave that he had cashed in. He called the phone number on the account statement and the woman that answered informed him that the letter was generated from Fort Leavenworth finance. She told him that he had to pay a minimum of $50.00 per month and file a protest letter. If they concur with his submitted statement, then he would be credited back all that he had paid. He called Fort Leavenworth finance and talked to Mr. T- H-, and he instructed him to do a protest letter with attachments and send to DFAS IN/debt and claims. He did this and he received only one more letter with a bill attached and he paid an additional $50.00 on 27 February 2016. He received no more statements of required payment from DFAS. He assumed it was corrected and that he would get his $100.00 sent back to him. b. On 16 January 2018, he received a past due account letter from DFAS. He called back to talk to Mr. T- H- and he told him to submit a DD Form 149 for correction of records. He told him he never heard anything from finance and he [Mr. T- H-] looked up the record and told him that his records showed they received the protest letter but they did not receive any attachments. He sent it to him to show him that the attachments were there and it was on one continuous document. They only had to scroll down to see each one. He saw that they were there but whomever received the protest letter was used to seeing some attachments on the email. In his letter to them he gave detailed instructions on how they were added on the letter. So here he is again submitting to the Board to hopefully after reviewing all these legal documents, the Board will come to the same understanding that he is owed money not the other way around. c. On 1 February 1996, he was court-martialed at Fort Carson, CO. He was then relocated to Fort Leavenworth. At the end of February, he received an LES stating he had been paid by Fort Carson finance on 15 February a mid-month pay check. He was already at Fort Leavenworth. This was very unusual as from May 1995 until January 1996, he was issued an identification card monthly that was good for only 30 days. He then had to physically walk into finance every mid-month and end of month to get a pay check. Once he was court-martialed, finance decided to deposit a check on 15 February 1996 into ENT credit union which put him in debt to the amount of $1,014.07. Once notified while in the U.S. Disciplinary Barracks, he submitted an inmate inquiry to inmate finance requesting information of this new debt that he had no knowledge of. They sent back an answer. The form had a hand written note from Sergeant K- stating that the debt was from a mid- month payment sent to ENT credit union located on Fort Carson. d. Of course, he submitted ignorance of this transaction due to the fact since April of 1995, there were no deposits made in his bank account due to him being flagged for court-martial. He found out that his pay and allowances had stopped completely. He had not received the convening authority's signature on his case yet. He sent several inmate inquiries to inmate finance to try and get his pay started again. His case was signed off by Major General P-, the convening authority, on 30 May 1996. He was issued this from Ms. M- K- who was in the defense accounting office. He even sent a copy of his DA Form 2A that they had him sign and date on 19 March 1996. This shows that his Expiration Term of Service (ETS) was 1 August 1996. They were stating that his ETS was effective on 1 February 1996, the day he was found guilty at his court- martial. If that were true, then case law states this: Notes of decisions under Title 10, USC, section 857(7). The note of decision refers to the legal decision of Dickenson versus. U.S. 163 Ct. Cl 512 (1963). Where the member's term of service had expired prior to his trial or court-martial. The court ruled that he was held for the convenience of the Government and was entitled to active duty pay during his confinement and until his right to pay was properly terminated by the convening authority's approval of the court- martial's sentence of forfeiture of pay. e. He should have been paid as a MSG until 30 May 1996. On 15 May 1996, he received a letter from DFAS IN, stating he was indebted to the DOD. In the letter, it stated that he could request an application of wavier. He sent a request to Mr. B-, their legal assistant civilian that inmates could use, requesting assistance on composing a letter for a waiver. While waiting on a pass to see him, on 17 June 1996, he received an account statement from DFAS IN showing that his debt had now increased to $1,018.65 due to interest charges. He sent another inmate inquiry to Mr. B-. In October 1996 he was on pass to Mr. B-'s office and they called the number on the form. They talked to a Mr. R-. He explained that the law was that no matter who was at fault, he was responsible for the debt. He could request a waiver. He explained how to write the letter and explain his reasons and sent to DFAS. It did not need to be notarized, so he wrote and mailed it. He heard no more issues from this until July 1997. f. In July 1997 he received a letter from the IRS stating that they had collected a debt from the DOD and paid it out of his income tax refund from 1996. But the amount collected was now $1,059.98. He went back on pass to Mr. B-'s office and they called the number listed on his previous letter and talked to Mr. M-. He told them his request for waiver was under review. He told him to call back if he did not hear anything in a few months. In the first week of February 1998, he went back to Mr. B-'s office and they called the same number and they talked to Ms. M-. She said his account was under audit and to call back. Mr. B- made out a pass for him on 23 February 1998 and they called again and talked to Ms. D-. She told them that the waiver was received on 12 January 1998. She could not answer as to where it had been. She said that the audit would be done by the end of March 1998. He received a letter from Denver finance, dated 24 February. This letter stated that his request was being forwarded to their customer service branch. Mr. B- put him on pass again on 3 March 1998. They called and talked to Ms. L-. She told them that his request was denied and he would have to appeal to Washington DC. At this point, he thought the point was useless. As you can see, he went to great lengths to try and correct the debt from three different finance locations. The debt was not his error and the IRS already took $45.92 above what was put in his credit union that he never received. g. He wants to tell the Board the lengths he went to attempting to try and get his MSG base pay from 1 February to 30 May 1996, when the convening authority signed off his case. Inmate finance still stated that he was already off active duty so it was a legal matter so they suggested he write his appellant attorney. He did that and his attorney submitted the additional pleadings to the U.S. Court of Appeals. Time went by and he received no answer from his appeals. During the next year he was assigned a new appellant attorney. After reading all of his evidence that he submitted, she decided to write a letter directly to DFAS IN. She stated case law, United States versus Gorski 47 M.J. 370 (1997), that supports his requests. Her letter was dated May 1999. h. His case was overturned on 18 December 1999. He was left in the U.S. Detention Barracks until 13 January 2000. He was put back on active duty as a MSG with over 24-years active duty pay. He was put up in Fort Leavenworth's TDY hotel which he had to pay out of pocket. He was given $100.00 casual pay upon release. He had no clothes and no uniforms until days later. It was winter. He went to his temporary commander and requested that he be put up in a basic allowance for quarters type quarters. On 31 January he was moved into a basic officer's quarters. He was given UPH assignment orders that read for convenience of the Government. A copy of the order was sent to DFAS. No one changed his basic allowance for housing until April 2000. He had his second court-martial and was sent back to U.S. Disciplinary Barracks again. He was now back in debt again, due to the overpayment of basic allowance for housing and monies withdrawn for child support. i. When he was first incarcerated, his divorce was finalized in May 1996, and he received copies via registered mail and his final divorce order in February 1997. He had already been incarcerated since 1 February 1996. It was at this time he found out that he was ordered to pay child support and spousal support in the monthly amount of $2,036.49. He was on zero pay status as of February 1996 and somehow the civilian court decided that he should pay that amount. So when his case was overturned and he went back on active duty, the Cleveland finance center sent a letter to Fort Leavenworth finance on 16 March 2000 stating that he had to pay no more than 60 percent of his disposable earnings. On his April LES you can see that finance took out basic allowance for quarters that was paid to him and since he only received $893.00 for mid-month and $183.00 for end of month, 60 percent of that was around $600.00 but they took out $1,448.00 which also put him me back in debt again to DFAS. Again, no matter whose fault it is, he was responsible. He had no problem with that law. j. On 20 June 2000, he was sent a memorandum from Ms. M- D-, defense military pay officer. It stated on a pay computation worksheet that he was overpaid $2,408.23. What it does not show is that the IRS took back $1,014.07 from his 1996 tax refund. This was in a previous attachment. The rest of the amount was the excess amount of money garnished from his April LES. He submitted an inmate inquiry to the defense military pay office trying to find some assistance. Their answer was "probably for amounts in arrears of child support." This statement was not legal law just someone in finance making an assumption. Again, he was responsible for their error. He should have double checked his February LES to see that they were paying him too much basic allowance for quarters as he moved to a basic officer's quarter on 31 January 2000. He saw that distribution sent a copy to finance so he thought it would take effect. He was preparing every day for his new court-martial, so it slipped by him. When finance took back the overpayment of basic allowance for quarters, then there was no more money to provide for child support. That action took him into a deficit which should have provided him with a zero- balance due at the end of the month. k. Upon his sentence completion in December 2001, he cashed in his excess leave as he was still on appellant leave. He was given an identification card. He was given a sheet of paper on final audit from Fort Leavenworth finance. They took out what was owed to the government and gave him a check for $528.69. This record does show the $1,014.07 collected by the IRS and they kept $1,494.11 from his cashing in his excess leave. This pays back the other debt that he owed. This is another audit that clears his name of any debt to DFAS. l. In December 2005 he was given orders to fly to Fort Leavenworth for a rehearing based on his appeals case. He went there from 11 to 15 December 2005. He was put on active duty and to the best of his knowledge, never received any pay for his time there. In August 2007 he received another audit from DFAS IN, that was ran on 22 March 2007. It was DFAS Form 0-0641. Again, he calls to the Board's attention that an audit was done and he was overpaid $0.00. It states that he earned $692.65 for his rehearing in December 2006 [sic]. He was unable to find any deposit record of that $692.65. The Ft. Leavenworth finance supposedly sent him a check dated June 2006. Why did it take them six months to issue him a check? He called Fort Leavenworth finance and talked to Mrs. K-. She sent him TDY forms, and DD Form 827 (Application for Arrears in Pay). He filled them out and mailed them back to her. He has the cover sheet that he mailed to her on 9 January 2009. She is the one he told that he did not receive his check for TDY and she answered his question about if he was supposed to receive MSG pay and that it included basic allowance for quarters and separate rations for those five days he was TDY. His bank records were lost in a flood in FL, that ruined his one box of old bank records. That is the one of the few submissions that he cannot submit a copy of. m. In his protest letter he attached a letter from DFAS and it stated "you were released from confinement and placed on appellate review leave effective 21 December 2001. You were entitled to payment of 60 days of accrued leave and payment of entitlements for the remaining nine days of leave taken from 21 – 29 December 2001. The debt of $1,494.11 was deducted from the leave entitlements and should not have been transferred to the Defense Debt Management system (DDMS) for collection. The debt has been cancelled and DDMS records indicate that the debt deleted from the credit bureaus." He cannot find the original copy of that letter so it is lost also. (14) Debt worksheet showing the applicant's final debt to the U.S was $1,014.07. (15) Military pay voucher which also shows a balance of $1,014.07 was due to the U.S. (16) DA Form 2A with emphasis on his ETS date of 1 August 1996. (17) U.S. Court of Appeals case wherein the applicant's attorney filed the suit based on wrongfully withheld pay and allowances due to him, and as of the date of filing DFAS had failed to issue a decision. (18) Pay computation worksheet for the period 1-31 January 1996 and 13 January – 20 April 2000, showing the applicant's entitlements and garnishments with $2,408.23 due to the applicant. (19) Memorandum, Subject: U.S. Disciplinary Barracks Form 96 wherein the defense military pay office responded to the applicant stating child support garnishment was increased from $1,448.94 for April 2000. The increase was probably due to amounts in the arrears. His advanced debt was created because he received basic allowance for quarters in the amount of $564.00 per month from 13 January – 31 March 2000, and he was assigned enlisted quarters on 31 January 2000, so he was not entitled to this amount. (20) Worksheets showing the applicant's entitlements for the periods 1-31 January 1996 and 13 January – 20 April 2000. b. As it pertains to application number 2: (1) Orders Number 256-13, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, OK, assigned the applicant to the Correctional Holding Detachment, U.S. Disciplinary Barracks, for rehearing of his case. (2) DD Form 1610 showing the applicant was issued a TDY order for legal proceedings with an approximate number of seven TDY days to proceed on or about 12 December 2005. (3) DD Form 1351-2 showing the applicant filed a final claim for a TDY settlement for a trip to Fort Leavenworth. (4) Excerpt from the JTR with emphasis on the convicted personnel awaiting completion of appellate review TDY travel authorization. (5) Flight itinerary showing the applicant had a confirmed flight for travel to and from Orlando, FL to Kansas City, MO. (6) Boarding passes for travel from Orlando, FL to Kansas City, MO. (7) Fax cover sheet showing the applicant faxed a second submission of documents related to denial of his TDY claim. (8) Claim return showing the applicant's TDY claim was returned due to him not having accounting information located in the system for payment. (9) SF 1199A showing the applicant's bank information for deposit. (10) Debts and claims email correspondence showing he submitted a TDY claim. (11) Self-authored letter previously summarized in his previous self-authored letter. c. As it pertains to application number 3, a self-authored letter that state sin pertinent part; (1) He has exhausted all of his administrative efforts to try and collect the difference in pay from when his sentence of 10-years to the U.S. Detention Barracks, Fort Leavenworth was served and he was released still fighting his unjust length of sentence that he was sentenced to after his second court-martial that was held in April of 2000. He was given justice at his rehearing at Fort Leavenworth, on 15 December 2005. The convening authority LTG P-, granted him a reduction of sentence to seven years and credit with all the confinement that he had served since 1996 plus an additional 30 days will be credited against his confinement. (2) He asked his appellant attorney how he would be credited back for pay for the 3 years and one month. He told him it would be paid to him through finance. He also stated that he would be paid MSG pay and all allowances. He waited until June 2006 before he received General Court-Martial Order Number, dated 7 June 2006. As seen on the attachment, the finance and accounting office received a copy through distribution. He again talked to his attorney on the phone and he said it was an administrative issue and not a legal one. He had the evidence now and DFAS would get a copy and he waited for an answer. (3) Now for the history of fact. He had been on appeal since April 2000. He had served all of his sentence and was credited with good time and work abatement credit. He was a model inmate and caused no problems that would extend his stay at the U.S. Detention Barracks. He was released in December 2001 and was put on appellant leave with an identification card. He was able to cash in his excess leave and just go on with his life. He was not on parole so he was able to start a life again. He moved to FL and then he received a legal order from the Department of the Army, Orders Number 256-13, that he was reassigned for the purpose for rehearing of his sentence. He then communicated with his attorney and purchased round trip tickets to Fort Leavenworth and return for the dates of 11 to 15 December 2005. (4) As stated before, after he received justice he waited until June to receive written results from the trial. He called Ms. K-, on or around 2007 at Fort Leavenworth finance and she had not received any paperwork concerning this issue. He called back to Ms. K- at the end of 2008 and she sent him a DD Form 827. He filled that out and mailed it back to Ms. K- on 9 January 2009. He was still fighting his TDY pay and he had a few health issues that he was dealing with so this fell by the wayside. (5) On January 2017, he received a letter from DFAS that he was in debt. He called back to Fort Leavenworth finance on 19 January 2017 and Ms. K- had retired so he talked to Mr. T- H-. He gave him the whole back ground of all his issues that he had been dealing with through Ms. K-, and he said that he would do some research and call him back. He called back on 7 February and told him send the TDY packet by email to him and he would resubmit it with his form that contained his personal bank information. (6) He advised him to submit a protest letter to DFAS and list all his grievances in the letter with attachments. One of the items listed was him receiving no back pay for his corrected sentence time. He also instructed him to pay the minimum of $50.00 per month so they would not put him in a delinquent status. He did this for two months and the account statements ceased after they received his protest letter ticket number 20170207156 submitted by email on 5 February 2017. He assumed that it would take a considerable amount of time to go through all the attachments and research his complaints. (7) On 20 January 2018, he received another letter from DFAS IN/debt and claims and he called back Mr. T- H- and he researched his protest letter and told him that they rejected it due to no attachments. He sent the packet to him via email and he looked at it and it was submitted with attachments as a scroll down to review them. His assumption was that the clerk reading it was so used to seeing the attachments written on the email. Since they were attached as one document, it was missed and rejected. He also informed him that his TDY that he sent in was disapproved due to the time line. He would have to start all over again and resubmit. He suggested that he use the Board to submit all his issues on DD Form 149; but to submit them separately as they are separate issues. This way the panel would be able to see all the attachments to one issue at a time and make a decision based on his attachment history. He said that he had all of the paperwork necessary for the TDY and he was not educated on the sentence adjustment issue. (8) He submitted his request for his change of judgement upon the Board and he prays that we have the resources to pay his back pay for MSG for the difference of what he was sentenced to which was 10-years and corrected to seven years. Since he was a model inmate and received all his good time and work abatement for continuous work while he was incarcerated, please do not compare apples and oranges. He would have been released 3 years prior to December 2001. He was dealt such harsh treatment by the unit that he was assigned to upon his retrial in January 2000, that the convening authority awarded him an additional 30-days credit against his confinement as stated in General Court-Martial Order Number 5. 5. On an undated memorandum, the Office of the Deputy Chief of Staff, G-1 reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Deputy, Compensation and Entitlements Division opined that: a. After careful review of this case, they recommend the Board partially approve the applicant's request for relief. b. The Army directed the applicant to travel to Fort Leavenworth, in December 2005 for legal proceedings. He departed his home in Port Orange, FL on 12 December 2005 and returned on 16 December 2005 as directed. He is authorized reimbursement for this travel to Fort Leavenworth, per the JTR. c. The Board should disapprove his request for relief related to his debt. In January 2000, the Army released him from confinement to prepare for re-trial. When the Army reassessed him back on to active duty, the Army improperly accessed him as a MSG/E-8. Based on the sentence imposed from the original court martial, the Army should have accessed him as PVT/E-1, pending the results of the second trial. The second court-martial subsequently upheld the reduction to PVT/E-1, which resulted in the overpayment. Relieving him of the debt is not in the best interest of the United States. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 7. See applicable references below. BOARD DISCUSSION: After reviewing the application and all supporting evidence, including the applicant’s statement and the G-1 Advisory opinion, the Board found that partial relief was warranted. 1. The Board agreed with the G-1 Advisory opinion that the applicant is entitled to reimbursement of his TDY travel and transportation payment. The Army directed to travel to Fort Leavenworth, Kanas in December 2005 for legal proceedings. departed his home in on 12 December 2005 and returned on 16 December 2005 as directed. is authorized reimbursement for this travel to per the Joint Travel Regulation. 2. Regarding the applicant’s request for debt relief and entitlement correction, there is insufficient evidence that the applicant’s debt is incorrect or that he should be paid for three years as a MSG/E-8. According to General Court-Martial Oder number 18, dated 30 May 1996, the applicant was reduced to E-1. The reduction was affirmed in General Court-Martial Oder number 5, dated 7 June 2006. There is insufficient evidence the applicant ever held the rank/grade of MSG/E-8 at any time after 30 May 1996. Therefore the applicant is not entitled to any pay at the rank/grade of MSG/E-8 or relief from his debt. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 1. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by approving the applicant’s request to receive TDY travel and transportation pay for the period 12 December 2005 to 16 December 2005, as directed by orders 256-13, dated 13 September 2005. 2. The Board recommends denial of that portion of the applicant’s request pertaining to cancellation/remission of a Defense Finance and Accounting Service (DFAS) debt in the amount of $8,227.03 and pay and allowances in the rank/grade of MSG/E-8 for 3-years and 30 days of excess incarceration following his reduced sentence on his appellant review hearing. 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the 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. 2. Army Regulation (AR) 600-4 (Remission or Cancellation of Indebtedness) provides policy and instructions for submitting and processing packets for remission or cancellation of indebtedness to the U.S. Army. Requests for remission or cancellation of indebtedness must be based on injustice, hardship, or both. Indebtedness to the U.S. Army will not be remitted or canceled when a Soldier's pay is not reduced promptly in connection with forfeiture of pay imposed by a court-martial, or if the Soldier will receive less than an honorable discharge at the time of separation. 3. JTR section U7506 c in effect at the time states, if a rehearing is ordered following completion of travel or official travel is ordered for hospitalization, physical examination, discharge, or for other purposes of an official nature, the member is authorized TDY travel and transportation allowances (including per diem). 4. Title 10, USC: a. Section 857 (1) states a forfeiture of pay or allowances shall be applicable to pay and allowances accruing on and after the date on which the sentence takes effect. Any forfeiture of pay or allowances or reduction in grade that is included in a sentence of a court-martial takes effect 14 days after the date on which the sentence is adjudged. b. Section 587 (6) states except as otherwise provided in this subsection, a general court-martial sentence is effective upon entry of judgment. c. Section 858(a) states a court-martial sentence of an enlisted member in a pay grade above E–1, as set forth in the judgment of the court-martial entered into the record under section 860c of this title (article 60c), that includes a dishonorable discharge, reduces that member to pay grade E–1, if such a reduction is authorized by regulation prescribed by the President. The reduction in pay grade shall take effect on the date on which the judgment is so entered. 5. Title 31, USC, section 3702, is the 6-year barring statute for payment of claims by the government. In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim. Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement. 6. Title 10, USC, section 1552 states the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002931 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1