IN THE CASE OF: 
 
  BOARD DATE: 23 September 2023 
 
  DOCKET NUMBER: AR20230002984 
 
 
APPLICANT REQUESTS:  in effect, cancellation of his debt with the Defense Finance and Accounting Service (DFAS). 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record) 
 
FACTS: 
 
1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in effect, the debt is for overpayment. He does not know who was overpaid but it was not him. He never received overpayment. 
 
3.  The applicant's service records contain the following documents for the Board's consideration: 
 
 a.  DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 28 August 2000, shows the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for a period of 8 years. On 7 September 2000, he was discharged from the USAR DEP and entered active duty for a period of 3 years. In conjunction with this enlistment DA Form 3286-66 (Statement of Understanding United States Army Incentive Enlistment Program) was completed which shows the applicant was enlisting in the Regular Army for a period of 3 years for a seasonal cash bonus of $6,000.00.   
 
 b.  On 1 April 2002, the commander Headquarters, 7th Infantry Division and Fort Carson arraigned the applicant on Special Court-Martial Order (SPCMO) Number 9, which shows the applicant was tried by a Special Court-Martial on 25 January 2002. He pled guilty to and was found guilty of: 
 
 
• five specifications of failing to go to his appointed place of duty on  


5 October 2001, 6 October 2001, 29 September 2001, 6 December 2001, and 7 December 2001 
• wrongful use of marijuana between on or about 30 July 2001 and  


30 August 2001 and between on or about 27 October 2001 and  
27 November 2001 
• breaking restriction on or about 1 October 2001 


 
The court sentenced him to forfeiture of $737.00 pay per month for two months, confinement for 30 days, and to be discharged from the Army with a bad-conduct discharge. The sentence was approved and except for the part of the sentence extending to a bad-conduct discharge was ordered executed.  
 
 c.  SPCMO Number 71, published by Headquarters, U.S. Army Field Artillery Center and Fort Sill, dated 17 April 2003, states the United States Army Court of Criminal Appeals set aside the findings of guilty of Charge I and its Specifications and Additional Charge I and its Specifications. The court then dismissed Charge I and its Specifications and Additional Charge I and its Specification. The remaining findings of guilty were affirmed. Only so much of the sentence as provided for confinement for 25 days and a bad-conduct discharge had been finally affirmed and the bad-conduct discharge would be executed. The portion of the sentence extending to confinement had been served.  
 
 d.  DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 January 2004, shows the applicant was discharged from active duty with a bad-conduct discharge by reason of court-martial. He completed 3 years, 3 months, and 29 days of active duty service. In item 18 (Remarks) it states, "excess leave (creditable for all purposes except pay and allowances) 693 days from 9 March 2002 through 30 January 2004." Item 29 (Dates of time Lost During this Period) it states "Under Title 10 USC 972:  25 January 2002 through 18 February 2002." Item 26 (Separation Code) shows "JJD."   
 
4.  On 31 May 2023, the Army Review Boards Agency requested information from DFAS regarding the applicant's debt. On 1 June 2023, DFAS responded via email stating, the applicant had three out of service debts. The first attachment shows his original debt of $7,757.56. Currently $609.38 is at the credit bureau. The next two attachments show the debt reasons for his three debts. His pay records show a separation date of 8 March 2002.  
 
5.  DFAS submitted the following documents for the Board's consideration: 
 
 a.  Master Military Pay Account which shows the original debt amount as $7,757.56  
 b.  Debt Reason Information states, Enlistment or Reenlistment Bonus based on the applicant's separation code of JJD. His enlistment contract obligated him to perform duty through 6 September 2006. The second debt was due to payments received after the applicant entered a no pay status on 9 March 2002, while on active duty.  
 
 c.  The applicant's Master Military Pay Account shows his date of separation as  
8 March 2002 and the balance due for his debt as $7,757.56. 
 
BOARD DISCUSSION: 
 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence shows the applicant’s debt resulted from his court-martial conviction and resultant sentence of forfeiture of pay and bad conduct discharge. He enlisted on 7 September 2000 for a cash bonus. He was convicted by a court-martial that sentenced him to forfeiture of pay for 2 months, confinement, and a bad conduct discharge. Part of his debt resulted from DFAS not collecting the forfeiture of pay prior to his separation. Another part resulted from the recoupment of the unearned portion of his enlistment or reenlistment bonus. His enlistment contract obligated him to serve until a certain date. He was discharged prior to completing his enlistment commitment and he received a bad conduct discharge. While he was pending appellate review, he entered a no pay status when he was placed on excess leave from 9 March 2002 to 30 January 2004. The Board also note that the applicant should first apply to DFAS – Out of Service Debt office with full justification and supporting evidence why his debt is not valid. 
  
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
xx: xx: xx: DENY APPLICATION 
 
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. 
 
  9/5/2023

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) in accordance with the authority of Title 10 USC, section 4837, the Secretary of the Army may remit or cancel a Soldier’s debt to the U.S. Army if such action is in the best interests of the United States. Indebtedness to the U.S. Army may not be canceled under Title 10 USC, section 4837 when the debt is incurred while not on active duty or in an active status. 
 
3.  AR 601-210 (Active and Reserve Components Enlistment Program), Paragraph 9-9 (Enlistment Program 9C, U.S. Army Incentive Enlistment Program (Enlistment Bonus, Army College Fund, Loan Payment Program)) provides that the bonus is paid upon reaching the service members first duty station after being awarded their Military Occupational Specialty. The Soldier must be advised that payment amounts paid by the Government are subject to Federal and State income taxes as taxable income each year that payment is made. 
 
4.  AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The regulation states the purpose of the separation document is to provide the individual with documentary evidence of his or her military service. It is important that information entered on the form should be complete and accurate.  
 
 a.  Paragraph 2-4 (Completing the DD Form 214), subparagraph h (12) (c) (Net Active Service This Period); amount of service this period, computed by subtracting item 12a from 12b. Lost time under Title 10, USC, section 972 and non-creditable time after Expiration Term of Service (ETS), if any, are deducted. Such time will be identified in block 18. If Soldier was released from active duty because of voided enlistment, enter "00 00 00." 
 
 b.  Paragraph 2-4 (Completing the DD Form 214), subparagraph, item 29 (DATES OF TIME LOST DURING THIS PERIOD); verify that time lost as indicated by DFAS agencies has been subtracted from Net Active Service This Period (block 12c) if the lost time was not "made good." If the ETS was adjusted as a result of lost time and the Soldier served until ETS, the lost time was "made good." Lost time under Title 10, USC, section 972 is not creditable service for pay, retirement, or veteran’s benefits. However, the Army preserves a record (even after time is made up) to explain which service 
between date of entry on active duty (block 12a) and separation date (block 12b) is creditable service. Time lost after ETS is non–chargeable time under Title 10, USC, section 972, but it must also be reported to ensure it is not counted in computation of total creditable service for benefits. For enlisted Soldiers, show inclusive periods of time lost to be made good under Title 10, USC, section 972, and periods of non-chargeable time after ETS. 
 
//NOTHING FOLLOWS//