PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            24 February 1999  
	DOCKET NUMBER:   AC98-06004
				   AR1999017390

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

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Barbara J. Ellis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his indebtedness to the Army be established as $2130.70, and that he be allowed to settle for one half that amount - $1065.35. 

3.  The applicant states that he was first notified in late March or early April 1993 [after his retirement in February 1993] that he had been overpaid, and it appeared to him that this indebtedness resulted from a failure to show that he had repaid an advanced pay that he had received.  He documented this in correspondence to DFAS (Defense Finance and Accounting Service), and was informed by DFAS that an error had been made and that his account had been closed.  A year later he was informed otherwise by DFAS, that he still owed money to the government.

4.  The applicant states that he did not know why he was indebted, wrote DFAS asking for information, finally had to submit a request under the Freedom of Information Action, and then had to ask his senator for assistance.  He states that he was then informed that his indebtedness was a result of overweight charges on shipment of goods from Germany in the summer of 1991.  He states that his true indebtedness should have been $2,120.70, not the amount of $3739.29, nor the amount of $2,792.54 shown on the supporting documentation.

4.  The applicant states that he then decided to exercise the option offered by DFAS to submit an offer of a lesser amount in lieu of full payment; however, he received no response.  He requested help from his senator, who informed him to appeal to this agency.  He states that by that time the full amount of $2854.34, had been withheld from his pay.  He states that had he been furnished the information in April 1993 which he finally received in August 1995 he would have submitted the offer at that time.    

5.  On 22 March 1993 the DFAS in Indianapolis notified the applicant, a retired lieutenant colonel, that a post separation review of his military pay account revealed that he was indebted to DOD in the amount of $2,854.34.  On 30 April DFAS reminded him of this debt.  The applicant responded to DFAS, stating in effect, that he believed an error was made in his LES (leave and earning statement) for June 1992 which may have resulted in the erroneous amount being carried forward, gave a history of the collections of advanced pay that he had received, and attributed the error to an erroneous amount of $28.54 becoming $2854.00, which remained on every LES until he retired.  He requested relief from this indebtedness because he had never been provided an explanation for the debt, nor how it was computed.  He also stated that he had been retired for disability, was unemployed and the sole support of his family, including three children under 12 years of age.
  
6.  The DFAS sent him a third notice on 9 June 1993, with the debt increased to $2,888.36 because of interest charges.  He wrote to DFAS on 22 June, enclosing a copy of his previous letter, and again asking for a waiver of the indebtedness.

7.  On 3 August 1993 DFAS informed him that there was an error on his account, they were closing it within their office for a review and any needed action by other DFAS components, and that he would be further advised.

8.  On 22 March 1994 he wrote DFAS because the amount of $2854.34 was included in his income for 1993 (on his W-2) form.  He referred to the                   3 August 1993 DFAS letter that his case was closed, but he stated that evidently the account was not corrected resulting in the error on his W-2 form.   

9.  On 27 September 1994 he was informed that the indebtedness would be collected from his retired pay until liquidated.  He again wrote, stating that he thought the matter had been settled.  A February 1995 retired pay statement shows a collection of $280.00 for a debt he incurred while on active duty.   

10.  On 3 March 1995 he again wrote DFAS asking for the source document establishing his indebtedness, the date he became indebted, and what right he had then to examine the documentation and to contest the indebtedness.  He requested the source documents under the Freedom of Information Act in a separate letter of 3 March 1995.  On 3 May 1995 he requested assistance from a member of congress (MC).     

11.  In response to an inquiry from the MC, DFAS informed that MC that the applicant’s indebtedness was for collection by transportation operations for excess weight in the amount of $2854.19, which shows this debt on the applicant’s July 1992 LES.  His military pay account shows that the debt was suspended, but the separation input released the suspended debt for collection, which resulted in the debt at separation.  The LES for 1-31 July 1992 does show a total indebtedness of $2854.19.  A transaction record of 13 June 1992 shows that indebtedness.  

12.   On 29 August 1995 the aforementioned MC forwarded to the applicant, among other papers, bill of lading documents showing shipment of the applicant’s goods to Fort Sill, Oklahoma from Germany and from Charleston, South Carolina in 1991.  On that same date, DFAS forwarded copies of a transportation letter explaining the amount due for transportation charges.  That letter shows that the applicant owed $2854.19 because of charges resulting from the shipment of goods in excess of weight allowances.  

13.  On 30 August 1995 he wrote DFAS Cleveland (where his account had been transferred), in which he offered to settle his debt to the government in the amount of $1500.00.  He outlined the circumstances that may have caused him to ship goods in excess of his weight allowance, stated again that he was unemployed and was on a strict budget, and again questioned the amount of his indebtedness.

14.  On 26 October 1995 DFAS Cleveland informed him that that center was a withholding agent to recoup outstanding debts and could not verify the validity of his indebtedness or approve repayment of a lesser amount and therefore, had forwarded his letter of the Finance and Accounting Center at Fort Benjamin Harrison, Indiana.  That DFAS informed him that his indebtedness was established in the amount of $2854.34, and the current outstanding balance was $334.34.

15.  On 14 December 1995 DFAS Indianapolis provided the applicant an explanation of the charges resulting from the adjudication of his case in June 1992, which was determined from the information on three government bills of lading.  He was informed that he should apply to this agency if he felt that an error had been made in the computations, or that his case had been unjustly adjudicated.

17.  On 18 March 1996 he inquired of the Directorate for Debt and Claims Management at the Finance and Accounting Center in Indianapolis concerning his offer in his 30 August 1995 letter [to settle the debt for $1500].

CONCLUSIONS:

1.  The applicant did have a debt to the government because of charges stemming from shipment of goods in excess of his weight allowance.  That debt was either $2854.34 or $2854.19.  Nonetheless, it apparently has been collected in the amount of $2854.34.

2.  The applicant’s LES covering the period 1-31 July 1992 clearly shows a debt to the government of $2854.19, a debt that an individual of the applicant’s rank and experience would certainly not overlook and almost certainly would question. This Board also believes that he would have been aware of his weight allowance, and the total weight that he shipped in 1991, showing that he shipped goods in excess of his weight allowance.  Consequently, he would have known that he owed the government money.  Nevertheless, he apparently retired [in February 1993, as he so states] without satisfying this debt. 

3.  Nonetheless, the responses that he has received from agencies in DFAS concerning this indebtedness have not been especially timely or informative, with a response to his request for a waiver of the indebtedness, informing him that there was an error on his account and they were closing it for a review.  He apparently was not provided an answer to his waiver request, but was later informed that money would be deducted from his retirement pay to satisfy the debt.

4.  His 30 August 1995 offer to settle the debt for $1500.00 has apparently not yet been answered.  This Board feels that this is a reasonable offer, based on the circumstances of this case, to include the fact that in June 1993 he was informed that he could opt to settle for a lesser amount in lieu of full payment.  

5.  Consequently, the applicant’s indebtedness to the United States in the amount of $2854.34, that he incurred while on active duty, is reduced to $1500.00.  The applicant should be reimbursed any amount that he has paid in excess of $1500.00 to satisfy that debt. 

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by adjusting the applicant’s indebtedness of the United States that he incurred while on active duty from $2854.34 to $1500.00; and that he be reimbursed any amount that he has paid in excess of the $1500.00 to satisfy that debt. 

2.  That so much of the application as is in excess of the foregoing be denied. 

BOARD VOTE:  

__cmf___  ___mdm_  ___bje__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-06004/AR1999017390	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990224	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 128.10		
2.		
3.		
4.		
5.		
6.