PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            5 August 1999
	DOCKET NUMBER:   AR1999028063

	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. Rick A. Schweigert		Analyst	

	The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ernest W. Lutz, Jr.		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 U.S. Government be forgiven.

3.  The applicant states that on 11 January 1995 the Board determined that his discharge on 1 July 1992 was inequitable under the Special Separation Benefit (SSB) program.  However, 7 years later and after his restoration to and retirement from active duty he has learned that he owes the Government $65,557.82.  He goes on to state that the Defense Finance and Accounting Service (DFAS) withheld all but $35.00 of his May 1999 retirement check without informing him of its intention to recoup those monies.  The hardship of the recoupment action is compounded by the fact that he had recently resigned his position in the local sheriff's department to attend higher education and was relying on his Army retirement along with his wife's salary to support their two small children until he completed his education.  Finally, he states that all of this has left his family in dire straights, and with the amount of this debt, it could lead to bankruptcy.

4.  On 19 January 1992 the applicant submitted a request for early separation under the SSB program, which was approved on 11 May 1992, based on erroneous information he received that he was not selected for promotion to pay grade E-7.  Based on that information he elected separation for entitlement to full separation pay, rather than face elimination under the Qualitative Management Program and receive only half separation pay.  However, unbeknownst to the applicant and his command at the time, he had been selected for promotion to pay grade E-7 by a standby promotion board that had adjourned on 22 May 1992.  Thereafter, orders were published promoting him to pay grade E-7 with a date of rank of 1 September 1991.

5.  Since neither the applicant nor his command was informed of the promotion, he was separated under the SSB program and was honorably discharged on 1 July 1992, having completed 18 years, 2 months, and 27 days of total active service.  He received  $65,557.82 in separation pay.  

6.  On 11 January 1995 the Board determined that the applicant's discharge on 
1 July 1992 was inequitable.  Accordingly, the Board voided that discharge, corrected his record to show that he continued to serve on active duty until 1 September 1993; promoted him to pay grade E-7 effective 1 September 1991; changed his reentry (RE) code to RE-1; and gave him 120 days to reenlist in the Regular Army in pay grade E-7.  

7  On 1 March 1995 the applicant reenlisted in pay grade E-7.  He served on active duty until 31 August 1996 when he was honorably separated for length of service retirement.  His name was placed on the retired list the next day in pay grade E-7.

8.  At the time his first application was considered, the Board was aware of the fact that the applicant had received more than $65,000.00 in separation pay; however, the Board did not address any issues regarding that pay.

9.  Army Regulation 600-4 serves as the authority for processing applications for remission of indebtedness.  It states, in pertinent part, that a debt to the Government may be canceled if it is determined that based on information received, an injustice or hardship, or both exists.  It also states that the soldier's awareness of policy and procedures will be considered as well as whether or not the soldier inquired of proper authority and was told that the payment was correct.  Requests for cancellation or remission of indebtedness will not be considered if there is evidence of fraud, larceny, or embezzlement on the part of the applicant.

CONCLUSIONS:

1.  There is no evidence of fraud, larceny, or embezzlement in this case.  The applicant was discharged and accepted separation pay (less taxes) in good faith.  However, when he learned that his discharge was premature because he was not timely promoted to pay grade E-7 while on active duty, he sought relief through this Board.   

2.  Thereafter, the Board recommended that his discharge be voided; that his records be corrected to show that he continued to serve on active duty until the scheduled expiration of his term of service; and that he be promoted to pay grade E-7.  Also, the Board recommended that he be given the opportunity to reenlist in his former pay grade of E-7.  

3.  When this Board reviews a case and determines that an error or injustice has occurred, the Board strives to fashion relief in such a manner that the individual is made whole, as though the error or injustice never occurred.  However, there are some situations that cannot be completely corrected in accordance with established precedents, most often due to the passage of time.

4.  In this case, by the time the Army directed the applicant's reenlistment on active duty, he had been separated more than 3 years.  Consequently, this lengthy break in service placed him in great financial hardship.

5.  When the Army allowed the applicant to reenlist he had every reason to believe that he would be restored to the position he held, and his reenlistment would not cause financial hardship.

6.  In the Board's opinion, soldiers who are reenlisted to active duty after 3 years break in service should be fully counseled by the Department prior to being reenlisted about the possible adverse financial ramifications of returning to active duty and should be required to sign a memorandum of understanding in that regard.  

7.  Since there is no evidence that the applicant was counseled regarding his separation pay, and since this Board did not raise the issue of the consequences of his return to active duty in its original recommendation in this case, it is now apparent that the interest of justice would best be served by forgiving the indebtedness the applicant is being asked to bear for the separation pay he received in 1992.

8.  The Board is cognizant of the fact that the foregoing conclusion may appear to be unjust enrichment for the applicant.  Correcting the applicant's record in such a manner is in accordance with the cited regulation and will restore financial stability to the applicant and his family by lifting the tremendous burden of a $65,000 debt to the Government.  

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

	a.  by canceling and forgiving the debt owed to the Government by the individual concerned for the separation pay payment made to him on or about 1 July 1992 in the amount of $65,557.82; and

	b.  by stopping all collection actions concerning the debt and that any monies collected toward repayment of the debt be refunded to him.  

BOARD VOTE:  

___ao___  __mdm__  ___ewl __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Mark D. Manning____
		        CHAIRPERSON

INDEX

CASE ID	AR1999028063	
SUFFIX		
RECON		
DATE BOARDED	1999/08/05	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  293	128.1000/Remission/cancellation	
2.		
3.		
4.		
5.		
6.