PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            20 June 2000
	DOCKET NUMBER:   AR2000039036

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James E. Anderholm		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, in effect, that his debt that resulted from overpayment of special duty assignment pay (SDAP) be remitted and that he be reimbursed the portion of the debt already collected.

3.  The applicant states, in effect, that he was receiving SDAP from December 1996 through July 1999.  In August 1999 his SDAP was stopped based on a clarification of the policy and regulation governing the payment of SDAP.  He claims that upon his arrival in the unit he was told that he was authorized SDAP and payment of the pay was authorized.  

4.  In August 1999, his SDAP was terminated and the payment was stopped.  He was advised that unit personnel officials would take the necessary action to submit cancellation/remission of debt paperwork for all the unit members involved and there would be no collection until this action was resolved.  

5.  In September 1999, he was advised that he would have to submit a remission/cancellation of debt packet, which he did on 30 September 1999.  He was then advised by a local finance official that no money would be collected until the issue had been clarified.  However, in September 1999, there was a debt collection of $1688.50 taken from his pay and in October $478.50 was collected from his pay.  He was told by a local finance official that this money should have not been collected as there had been no decision rendered on his request for cancellation/remission of his debt.  

6.  On 14 October 1999, he was told his request for cancellation/remission of the debt had been rejected because the packet did not contain his commander’s signature.  He acquired his commander’s signature and resubmitted the packet.  He concludes that he had been poorly advised by unit personnel and finance officials from the very beginning of this event and was advised that while his SDAP would stop, no money would be collected because the overpayment was not his fault.  He believes that this action resulted in an injustice to him and that the money collected from his pay should be refunded.  The applicant has provided the enclosed expanded statement for consideration.

7. The applicant’s military records show that he has served on active duty for just over 16 years and is currently serving in the rank of sergeant first class/E-7 (SFC) and that he is assigned to the 75th Ranger Regiment at Hunter Army Airfield, Georgia.  

8.  The applicant was authorized SDAP by his command, effective in December 1996, and he received that pay until July 1999.  At that time a determination was made that he was not entitled to SDAP and it was terminated.  

9.  In August 1999, it was determined that the applicant owed a total SDAP debt of $2167.00, this debt was codified in the applicant’s leave and earnings statement (LES) for August 1999.

10.  On 10 September 1999, the Regimental Commander of the 75th Ranger Regiment issued a memorandum the subject of which was SDAP for Rangers.  This memorandum indicated that the applicant and some other members of his unit had been subjected to a premature recoupment of their SDAP entitlements prior to a clarification of the SDAP policy and a final decision on their authorization for SDAP.  It also re-initiated their SDAP, effective the date of termination, and requested that all entitlements collected from these soldiers be repaid.  

11.  In September 1999, an SDAP debt collection was taken from the applicant’s pay in the amount of $1688.50.  On 30 September 1999, he submitted a Department of the Army (DA) Form 3508-R (Application for Remission or Cancellation of Indebtedness) requesting that his debt be cancelled.  He cited the fact that the debt collection had been premature given the regulatory requirements for entitlement to SDAP had still not been clarified at the time.  He also indicated that the problem impacted other members of the unit and he had no role in obtaining unauthorized pay.  He indicated that he had since been authorized SDAP and requested that all entitlements collected be repaid and that future collections be stopped.  

12.  The applicant’s DA Form 3508-R was submitted by unit personnel officials without obtaining the unit commander’s signature and was rejected by finance officials based on this factor.  On 14 October 1999, the unit commander verified the information on the applicant’s cancellation/remission of indebtedness application and the form was resubmitted to the finance office.  In October 1999, the remaining $478.50 of the applicant’s SDAP debt was collected from his pay.

13.  On 23 November 1999, the applicant’s request for remission or cancellation of indebtedness was approved for $1,200.00 by the Army Personnel Command (PERSCOM).  They explained that since $1,281.65 of the indebtedness was collected prior to the commander’s signature on the application, it cannot be considered for remission or cancellation under the provisions of the governing regulation.  PERSCOM officials also advised the applicant that if he felt an injustice occurred surrounding the collected portion of the debt, he could apply to this Board for a further review. 

14.  In connection with the processing of this case an advisory opinion was requested and received from the Defense Finance and Accounting Service (DFAS), Indianapolis, Indiana.  This opinion indicates that the applicant received an SDAP overpayment of $2167.00 as indicated on his August 1999 leave and earnings statement.  The first debt collection of $1688.50 was taken from his pay in September 1999 and a second collection of $478.50 was taken in October 1999.  DFAS opines, under the provisions of paragraph 3-3d of Army Regulation 600-4, that a favorable ruling by this Board should not exceed granting the applicant relief beyond an amount of $239.25 which is the amount collected after the commander’s signature on the applicant’s request for remission/cancellation of debt packet.  

15.  DFAS officials further opine that while it is regrettable that the applicant may have been misled by erroneous information by a member of his servicing finance office, his rights for determination are based on facts in the matter rather that on erroneous information.  They conclude that lacking a specific authority, the United States Army is not liable for the erroneous action by its officers, agents or employees, even though committed in the performance of their official duties.  This advisory opinion was referred to the applicant for comment on 1 May 2000; however, he has provided no response to date. 

16.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members) gives instructions for submitting and processing applications for remission or cancellation of indebtedness to the United States Army.  It states that applications must be based on injustice, hardship, or both. This includes debts caused by errors in pay to or on behalf of a soldier.

17.  Paragraph 1-6 ( Indebtedness to the U.S. Army that may be remitted or canceled under 10 USC 4837) provides that an enlisted soldier's debts to the United States Army may be remitted or canceled on the basis of this regulation in cases arising from payments made in error to a soldier; payments made in excess of an allowance on behalf of a soldier; debts incurred while serving as an officer of the U.S. Army; debts acknowledged as valid; debts for which an appeal has been denied.

18.  Paragraph 3-3 establishes the functions and responsibilities for the Defense Accounting Officer (DAO), the Finance and Accounting Officer (FAO), or the United States Property and Fiscal Officer(USPFO) in the remission/cancellation process.  Paragraph 3-3d states, in pertinent part,  that they will review the commander's recommendations concerning suspension or withholding of pay and if all concur to stop withholding the soldier's pay, they will stop collection as of the date the commander signed the application. 

CONCLUSIONS:

1.  The Board found that the opinion rendered by DFAS accurately reflects the policy for the remission or cancellation of indebtedness, as outlined in the regulation.  Further, their recommended action of refunding only that money collected subsequent to the unit commander signing the applicant’s DA Form 3508-R is the proper action based on that regulatory guidance.  

2.  However, after carefully examining the evidence or record and the independent evidence submitted by the applicant, the Board determined that the entire debt incurred by the applicant, as a result of the termination of his SDAP, should be forgiven.  In addition, the Board concluded that it would be appropriate to refund the applicant the total amount of the SDAP debt collected from him that has not already been reimbursed.  

3.  The evidence of record shows that the applicant had no culpability in receiving money he was not entitled to.  He was authorized SDAP by unit personnel officials and drew that pay under the assumption that it was a legitimate entitlement.  When notified that he was not authorized SDAP he took prompt action to resolve the issue.  

4.  The record shows that the applicant took immediate action to satisfy the requirements for submitting an application for remission or cancellation of his indebtedness.  In submitting this action, he complied with all the instructions and requirements given him by local personnel and finance officials.  In the opinion of the Board, the responsibility for failing to meet the regulatory requirements for remission or cancellation of his debt rested with unit personnel and local finance officials, not with the applicant.  

5.  The DFAS advisory opinion accurately states that United States Army is not liable for the erroneous action by it officers, agents, or employees, even though committed in the performance of their duties.  However, the Board interprets their stated expression of regret that the applicant may have been misled by a member of his servicing finance office as an admission that the fault in this case does not rest with the applicant.  Therefore, in the interest of justice and equity, the Board concludes an exception to policy is appropriate in this case and that full relief is warranted.

6.  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 by remitting the entire SDAP debt of $2,167.00 incurred by the individual concerned, and by reimbursing him the entire amount of the SDAP debt collected from him that has not already been refunded.  

BOARD VOTE:  

___ewl__  ___ja____  ___vbc__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Van B. Cunningham____
		        CHAIRPERSON

INDEX

CASE ID	AR2000039036	
SUFFIX		
RECON		
DATE BOARDED	2000/06/20	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  297	128.1400	
2.		
3.		
4.		
5.		
6.