PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           8 November 2001
	DOCKET NUMBER:   AR2001058615

	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. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Karen Y. Fletcher		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, remission or cancellation of indebtedness to the Army.

3.  The applicant states, in effect, that the $3362.82 debt to the Army based on his being overpaid is unjust, creates a hardship on him and his family, and should be remitted or canceled accordingly.  He claims that he made repeated attempts to resolve the overpayment error that resulted in his indebtedness to the Army that went unanswered and he should not have to pay for this mistake.

4.  The applicant’s military records show that he is a sergeant first class/E-7 (SFC/E-7) in the United States Army Reserve (USAR) and that on 2 June 2001, he was released from active duty in the Active Guard Reserve (AGR) program.  

5.  In December 2000, while serving on active duty in the AGR and assigned to the Pittsburgh Recruiting Battalion, Pittsburgh, Pennsylvania, the applicant was notified, via his December 2000 leave and earnings statement (LES), that he was indebted to the Army in the amount of $3362.82 based on being overpaid.  

6.  A pay adjustment authorization form (DD Form 139) prepared by local Defense Finance and Accounting Service (DFAS) officials at Fort Meade, Maryland, confirmed that the applicant was indebted to the Army in the amount of $3362.82.  The reason for this debt was listed as his being over paid for the periods November 1997 through January 1998 and December 2000 through January 2001.  In March 2001, the applicant submitted an application for remission or cancellation of indebtedness (DA Form 3508-R) through channels claiming injustice and hardship. 

7.  On 14 March 2001, the applicant’s unit Adjutant completed a memorandum in support of the applicant’s request for cancellation or remission of indebtedness to the Army.  This statement attested to the chain of command’s support of the applicant’s request and indicated that the applicant had made several attempts to correct the incorrect service dates that resulted in his indebtedness.  It further stated that the applicant had been repeatedly told by Army Reserve Personnel Command (ARPERSCOM) officials that his service dates were correct and that he was miscalculating the dates and it was not until the unit personnel staff noncommissioned officer (PSNCO) became involved that ARPERSCOM finally realized their mistake and the error in the applicant’s service dates.  The Adjutant finally indicated that due to the applicant being placed in a financial hardship, through no fault of his own, the chain of command was requesting that the request for remission or cancellation of indebtedness be approved in the best interest of the applicant, his family, and the Army.

8.  On 19 March 2001, the DFAS Disbursing Officer, Fort Meade, Maryland, forwarded the applicant’s DA Form 3508-R to PERSCOM and confirmed the applicant was indebted to the government in the amount of $3362.82 and requested remission or cancellation of the debt based on hardship and injustice.  The Disbursing Officer, after reviewing the circumstances of the case, recommended approval of the applicant’s request. 

9.  On 18 April 2001, the Chief, Special Actions Branch, Total Army Personnel Command (PERSCOM), responded to the applicant’s request for remission or cancellation of indebtedness, which had been received in his office on 3 April 2001.  In his reply, this PERSCOM official indicated that the governing regulation did not allow the remission or cancellation of indebtedness to the Army after an expiration of term of service date had passed unless a soldier has reenlisted.  He further advised him to apply to this Board if he felt an injustice had occurred; however, this did not imply that an error or injustice had occurred in his case. 

10.  In connection with the processing of this case, an advisory opinion was requested of and received from the PERSCOM Chief, Special Actions, dated 
17 October 2001.  It indicated that had the applicant still been on active duty when his request for remission or cancellation of indebtedness was received at PERSCOM, favorable consideration would have been granted.  This favorable consideration would have been based on the recommendation of the supporting DFAS office and the lack of evidence to contradict the applicant’s claim that he was not at fault for the overpayment that resulted in his indebtedness to the Army.  In addition, the confirmation of the applicant’s chain of command that repeated attempts had been made to correct the mistake further supported the applicant’s claim of injustice. 

11.  Army Regulation 600-4 provides the policy and procedure for submitting applications for the remission or cancellation of indebtedness to the Army based on hardship, injustice, or both.  It further states, in pertinent part, that in determining if injustice or hardship exists the soldier’s income, expenses, and a member’s contribution to the indebtedness by not having the situation corrected will be considered.  

CONCLUSIONS:

1.  The Board notes the applicant’s contention that his indebtedness to the Army should be remitted or cancelled based on hardship and injustice considerations and it finds this claim has merit.  

2.  The evidence of record confirms that the applicant made repeated attempts to correct the overpayment that resulted in his indebtedness to the Army, as evidenced in the supporting comments from his chain of command and the lack of contradictory evidence provided by the local DFAS officials. 

3.  In addition, the Board concurs with the finding of the PERSCOM Chief, Special Actions, that the applicant’s indebtedness to the Army is unjust, given his repeated attempts to resolve the overpayment that resulted in his indebtedness to the Army, as evidenced by the approval recommendations of the applicant’s chain of command and local DFAS officials.

4.  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 showing that the indebtedness to the Army of the individual concerned was unjust and by remitting or canceling his $3362.82 indebtedness to the Army.

BOARD VOTE:  

__FNE __  __BJE__  __KYF __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

	___Fred N. Eichorn  __
		    CHAIRPERSON

INDEX

CASE ID	AR2001058615	
SUFFIX		
RECON		
DATE BOARDED	2001/11/08	
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.  283	128.0000	
2.		
3.		
4.		
5.		
6.