MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             21 November 2000
	DOCKET NUMBER:     AR2000040810

	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. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas A. Paqan		Chairperson	
	Mr. Thomas E. O'Shaughnessy		Member	
	Mr. Roger W. Able		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 all monies collected on his debt to the government as a result of being overpaid Family Separation Allowance (FSA) be refunded to him.  

APPLICANT STATES:  In effect, in a letter to the Board that he was authorized FSA when he departed Fort Bragg, North Carolina for Fort Benning, Georgia enroute to Bosnia.  However, he never reported to Bosnia but he returned to Fort Bragg as a result of a medical condition and he continued to receive FSA.  In October and November 1998, and in January 1999, he put in pay inquiries to have the FSA payments stopped.  In November 1999, he submitted a DA Form 4187 requesting that his debt be remitted or pro-rated.  In February 2000, he went to Debt Management and he completed an Application for Remission or Cancellation of Indebtedness.  However, he was informed that it was too late.  The full sum of the monies that he owed was deducted from his pay in February 2000.  It was at this time that he was instructed to make application to this Board. He believes that he did everything that he could have to rectify the problem.  His family has endured a hardship as a result of the monies being collected from his pay.  He also submits two letters written by his chain of command and Unit Commanders Finance Report (UCFR) Updates in support of his request.

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

The letters written in support of the applicant’s request by his chain of command substantiate his contentions that he did everything within his power to have the FSA payments stopped.

The pay inquiries that the applicant personally completed to request that the FSA payments be stopped are not contained in the available records.

On 5 November 1998, the UCFR Update shows that the unit requested that “finance” correct the applicant’s records by the entry “deducting FSH.”  The reason was “advanced pay is paid off.”  It is then lined through and an illegible statement is handwritten beside it.

On 17 December 1998, the UCFR Update shows that the unit requested that finance “deduct, FSH, stop taking advanced pay.”  The reason is shown as “advanced pay is paid off,” it is lined through and “did not deploy” is handwritten beside it.

On 6 January, and on 1 February 1999, the UCFR Update shows that the unit reported to “finance” that the applicant was receiving “FSH” that he was no longer authorized because “he did not deploy.”

On 4 March and on 8 and 30 April 1999, the UCFR Update shows that the unit requested that the applicant’s pay be corrected by “deducting FSH.”  The reason is shown as “returned from Kuwait in June 1998” it is lined through and handwritten in pen next to it, is “did not deploy.” 

On 4 June 1999, the UCFR Update shows that the unit requested that the applicant’s pay be corrected by “deducting FSH” and the reason is shown as “returned from Kuwait in June 1998,” handwritten in pen next to it, is “did not deploy.”  The unit reported that his pay had been incorrect since June 1998.
Neither of the lined through statements show any initials to indicate who saw the request or any dates to show when or if any of the corrections were made. 

In connection with his application, the Defense Finance and Accounting Service (DFAS), Indianapolis Center opined, in essence, that it is well documented that both the applicant and his chain of command attempted to use the correct procedures to notify his servicing finance unit of the monthly overpayment.  The applicant was well aware that he was being over paid and that he was not entitled to the overpayment.  Therefore, he was responsible for setting the monies aside so that he would not endure a hardship when finance collected the monies back.  Therefore, DFAS recommends disapproval of the applicant’s request for the monies that have been collected.  If the Board rules in favor of the repayment, the applicant is authorized to receive $1,100.00, which is the amount collected on his February 2000 Leave and Earnings Statement.

In accordance with Department of Defense Financial Management Regulation, Volume 7A, Chapter 27, the applicant received FSA-1, and the purpose of Type 1, FSA is to pay a member for added housing expenses resulting from enforced separation from dependents.  FSA-1 is payable to service member’s with dependents who are assigned permanent duty outside the United States or in Alaska under the following conditions:  (1)  Transportation of dependents to the permanent duty station or to a place near that station is not authorized at government expense.  (2)  Dependents do not live at or near the permanent duty station.  (3)  Adequate government quarters or housing facilities are not available for assignment to a service member.

On 10 May 2000, the above advisory opinion was referred to the applicant for comment or rebuttal, but he failed to respond.

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 the 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. 

The local commander recommends approval of the remission or cancellation of indebtedness.  The date a commander signs the request for remission or indebtedness application is the effective date of relief for finance collection action.  

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.  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 this requirement.

2.  The applicant's debt in the amount of $1,100.00 to the government was a valid debt.  

3.  The UCFR Updates appear to indicate that the applicant’s unit failed to communicate to “finance” the appropriate corrective action that was needed to correct the applicant’s pay, when it was discovered that he was receiving FSA that he was not authorized.

4.  The Board notes that the applicant did not officially request remission or cancellation of indebtedness totaling $1,100.00 until February 2000.  The government recouped the $1,100.00 during the February mid-month pay prior to the request being approved and his pay records being updated.  Therefore, his request for relief for his indebtedness was made too late.  The applicant has provided no evidence to the contrary.

5.  However, the Board finds that the applicant admits that he was aware of being over paid, yet he neglected to save the monies so that he could repay the debt.

6.  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

__tap____  ___teo __  ___rwa__  DENY APPLICATION

					
		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

In accordance with instructions from “finance,” this request to stop payment included a DA Form 4187.  Finance also instructed him to attach orders to the DA Form 4187, returning him from Fort Benning to Fort Bragg.  But he had no such orders.  Finally, In December 1999, he stopped being paid the FSA.  

INDEX

CASE ID	AR2000040810	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001121	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 600-4	
DISCHARGE REASON	A10.21	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.0000	
2.		
3.		
4.		
5.		
6.