MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           14 October 1998
	DOCKET NUMBER:   AC98-09879

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Robert W. Garrett		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Remission or cancellation of his indebtedness.

APPLICANT STATES:  In a memorandum he submitted while on active duty requesting remission of his indebtedness, that he and the other soldiers who were sent temporary duty (TDY) to Korea were initially told they were being authorized one amount of per diem, then they were told they were going to get a different amount, and some of them were told as they were leaving Korea that they would receive a third, different amount.  He states that he resided in off post hotels which did not have laundry facilities, and he was one of many soldiers who worked shift and was unable to utilize government mess and transportation on a daily basis.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 13 February 1980 with 2 years, 11 months and 22 days of prior active service.  He performed duties as an administrative specialist and was promoted to pay grade E-7.

On 20 June 1995 the applicant submitted a travel voucher for TDY he performed in Korea.  He specified on that voucher that he departed his home station in Alaska on 16 May 1995 and arrived back in Alaska upon completion of his mission on 10 July 1995.

He was paid a total of $6,270.95 for his TDY trip.  Subsequent to his payment, it was discovered that he was overpaid per diem, that he should have only been paid a total of $3,994.20, giving him a debt to the Government of $2,276.75.  

That overpayment was based on a different rations availability statement being discovered than what was used to calculate the applicant’s TDY settlement.  The applicant was issued a rations availability statement on 18 May 1995 which stated that Government mess was not/would not be  available for 20, 21, 27 – 29 May; 3, 4, 10, 11, 17, 18, 24 and 25 June; and 1–4, 8, 9, 15, and 16 July 1995.

On 14 June 1995 the applicant was issued a Government quarters and mess nonavailability statement which stated that neither quarters nor mess were/would be available from 18 May to 18 July 1995.

The applicant was honorably retired for years of service on 1 March 1997.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant does not dispute the validity of his debt.  His contention is that he was confused on the amount of per diem he was actually authorized when he was issued a second nonavailability statement.

2.  While the records presented to the Board do not show why the applicant’s initial nonavailability statement specified sporadic periods of nonavailability, it is presumed that his mission required him to spend some periods of time at a military installation and some periods of time away from a military installation.  The time he spent performing duties at a military installation would be considered time where rations were available.

3.  The applicant, a senior administrative noncommissioned officer, would be expected to know something of rations availability or, at the very least, to know that he had been given conflicting availability statements and have the disparity rectified.  As such, the applicant is viewed as culpable in his overpayment.

4.  The Board notes that if the applicant’s first nonavailability statement was used to calculate his TDY costs, he would not have been given the amount which had the higher per diem amount.  There would be no basis for that payment.  To approve the applicant’s request would constitute giving him a monetary benefit which he was not entitled to receive, and which was (in all likelihood) not paid to the other individuals who had performed TDY on the same orders with the applicant.

5.  In view of the foregoing, there is no basis for granting the applicant's request. 

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                              GRANT          

                              GRANT FORMAL HEARING

 EMW  RWG  JNS DENY APPLICATION

Loren G. Harrell
Director