MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  19 August 1999
	DOCKET NUMBER:   AR1999026674

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Melvin H. Meyer		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:  In effect, that his indebtedness for the erroneous overpayment of special duty additional pay (SDAP) be cancelled.

APPLICANT STATES:  In effect, that at the time of his departure from his last duty station, the U.S. Army Recruiting Battalion, San Antonio, Texas, his SDAP was not terminated and caused him to incur an overpayment in the amount $2,625.00.  He further stated that the battalion’s administration (S-1) section back-dated a request for orders to 1 August 1996, however, the form was actually signed on 10 February 1997; and that the U.S. Army Recruiting Command (USAREC), Inspector General’s office was notified but failed to investigate his request.

In support of his request, the applicant submitted 19 documents specifically listed on an accompanying index.

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

He initially entered active duty under the delayed entry program on 22 February 1984.  He is presently serving on active duty in the rank of staff sergeant as an instructor/writer in the engineer equipment repair career field, military occupation specialty, 52D, at Aberdeen Proving Ground, Maryland.

In his affidavit outlining the chronology of events, he stated, in effect, that he departed his old unit, the recruiting battalion, on 1 August 1996 and reported to Fort Hood, Texas in December 1996 after a 2-month temporary duty assignment at Aberdeen Proving Ground; that during his in-processing at Fort Hood, he was advised by his servicing finance office he would continue receiving SDAP because it was too late to stop it for December; and that after reviewing his January 1997 leave and earning statement (LES) and consulting with his servicing finance office, he learned that the SDAP could only be stopped by termination orders from his old unit, however, the servicing finance office could stop his basic allowance for subsistence/rations in kind not available (BAS/RIKNA) paid while he was assigned to his old unit. 

He further stated that on 10 February 1997, he returned to his old unit at his own expense to obtain SDAP termination orders and that an NCO assisted him on the spot and back-dated the order to the date of his departure.  He goes on to state that his recruiting battalion commander had the responsibility to ensure his SDAP was stopped prior to his departure; that he was responsible for making finance officials aware of the error; that he did everything within his capability to fix the error, yet the error did not get corrected in a timely manner.  He added that other finance problems arose relating to his non-payment of basic allowance for quarters (BAQ) and therefore, caused him to spend SDAP funds; and that due to 

the injustice in command’s failure to correct the error through no fault of his own, he should not be required to pay this debt.

His LES for the pay periods from 1 August 1996 through 31 December 1996 show that he was paid SDAP at the rate of $375.00 per month.  

A copy of DD Form 139, pay adjustment authorization, dated 30 July 1997 issued by the applicant’s servicing finance office indicated a charge against his pay account for $2,625.00 resulting from an overpayment of SDAP from August 1996 through February 1997.

A copy of DA Form 3508-R, application for remission or cancellation of indebtedness, signed by him on 3 June 1997, showed that he requested cancellation of the debt.  His chain of command supported his request by recommending approval or as an alternative, recommending proration of his indebtedness over a 24-month period.

In a memorandum to U.S. Total Army Personnel Command (DA PERSCOM), Special Actions Branch, dated 4 August 1997, the commander of his servicing finance battalion recommended cancellation of his debt based on injustice alone. He stated, in effect, that the debt was not incurred due to the applicant’s own neglect; that his losing command was responsible to insure stoppage of the SDAP; and that once he realized that he was not entitled to the SDAP, the applicant did everything he could to stop the payment of SDAP.

In a second memorandum to DA PERSCOM dated 23 August 1997, the servicing finance battalion commander revised his initial recommendation by stating, in effect and in pertinent part, that only $750.00 of the original debt should be cancelled as a way to offer the applicant the benefit of the doubt over his confusion regarding the inconsistency in the dollar amounts deposited to his pay account and the effective dates for starting and stopping his entitlement to BAQ versus his ongoing SDAP dilemma; and that he was clearly aware he was not entitled to any payment of SDAP regardless of the delay in processing the SDAP stoppage, yet he used SDAP funds for other purposes.

On 6 January 1998, DA PERSCOM disapproved his request for cancellation of the debt and recommended that he contact his servicing finance office regarding proration of his indebtedness.  DA PERSCOM further recommended that if he believed injustice had occurred, he should apply to this Board for relief.

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

1. The applicant’s request is not warranted when the evidence of record is considered.

2.  Notwithstanding the delay in terminating his special duty additional pay by the recruiting command and the servicing finance office at the time of his out-processing, he did not go far enough in his efforts to overcome his indebtedness. He could have either returned the SDAP funds to his local finance office after each end-of-month payday on a cash collection voucher, or set aside the equivalent funds in his bank account until the action to terminate the SDAP payments took effect and was reflected in his pay account.  Then, he could have either made a one-time payment of the entire SDAP debt of $2,625.00 to his servicing finance office on a cash collection voucher or allowed the debt to be collected, on a one-time basis, from his pay account. 

3.  The Board concludes that there is no injustice in the collection of the overpayment of SDAP funds for which he clearly had no entitlement.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

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

___CF___  ___CA__  __MM___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999026674	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990819	
TYPE OF DISCHARGE	NA	
DATE OF DISCHARGE	NA	
DISCHARGE AUTHORITY	NA	
DISCHARGE REASON	NA	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128
	
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