PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            7 March 2002
	DOCKET NUMBER:   AR2001060263

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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 he be refunded the $3,625.52 collected from his pay prior to the cancellation of his initial debt of $6,753.00 on 7 May 01.

3.  The applicant states, in effect, that he was stationed in Saudi Arabia in 1996 with his dependent wife when the Khobar Towers were bombed in June 1996.  As a result of the bombing, all dependents were repatriated to a designated place and were paid per diem and lodging directly, without going through the sponsor. He further states that he had no control over the payments that his wife was receiving from the Defense Finance and Accounting Service (DFAS) and that he was divorced on 5 December 1996.  He goes on to state that he faxed a copy of his affidavit of permanent residence and a copy of his divorce decree to the DFAS office at Fort Jackson, South Carolina.  He subsequently received a letter from the finance office at Fort Jackson on 20 January 1997, which indicated that the evacuation allowances would cease effective 5 December 1996 and that his dependents needed to submit a final voucher.  Inasmuch as he no longer had dependents and did not get the money, he determined that it was his ex-wife’s responsibility to file the voucher.  However, he was transferred from Saudi Arabia to the Netherlands and in May 1997, he noticed that his leave and earnings statement showed a debt of $6,753.00.  He goes on to state that he went on temporary duty (TDY) to Fort Jackson to attend the Advanced Noncommissioned Officer Course (ANCOC) from June to September 1997 and while there, DFAS began collecting $200.00 per month from his pay to satisfy the debt.  He continues by stating that at that time he filed a request for cancellation of indebtedness with the local finance office and his debt was suspended pending resolution of the debt.  However, the packet was lost and he had failed to keep a copy of the packet.  In June 2000, DFAS resumed the debt collection and he again submitted a request for cancellation of the debt.  He also states that the Total Army Personnel Command (PERSCOM) cancelled $3,127.48 of the debt but could not cancel the remaining $3,625.52, because the commander had not signed his second request for cancellation of the debt until after the debt had been collected.  

4.  The applicant’s military records show that he enlisted on 4 June 1987 for a period of 3 years, training as a Personnel Administration Specialist and assignment to Europe.  He has remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 5 March 1992.

5.  His records show that he was assigned to Saudi Arabia from 1994 to 1997, that he was promoted to the pay grade of E-7 on 1 May 1997 and that he was transferred to the Netherlands, with TDY en route to the ANCOC at Fort Jackson from June until August 1997.

6.  On 22 January 1997, the Fort Jackson-DFAS Office sent the applicant and his ex-wife a memorandum acknowledging that it had received his affidavit certifying that on 5 December 1996, his dependents were occupying a permanent residence and that evacuation allowances would cease.  It also informed him that either he or his wife must file a final travel voucher to settle advances received during the period 18 September to 5 December 1996.  

7.  On 30 June 2000, the applicant submitted an Application for Remission or Cancellation of Indebtedness (DA Form 3508-R) based on injustice.  The applicant’s commander and the local finance office submitted statements supporting the cancellation/remission of the debt.  The local finance office also noted that the applicant had never been provided official notification of the debt.

8.  The applicant’s request was returned to the applicant by the PERSCOM on 14 August 2000 due to being incomplete.  The local finance office completed the necessary forms and returned it to the PERSCOM in April 2001.  On 7 May 2001 the PERSCOM approved his application for cancellation or remission of $3,127.48 and denied the remaining amount of $3,625.52 because it was collected prior to the commander signing the application.  The PERSCOM advised him to apply to this Board for return of the collected amount of the debt.

9.  Army Regulation 600-4 serves as the authority for processing applications for cancellation/remission of indebtedness.  It states, in pertinent part, that a debt to the government may be cancelled if it is determined that based on the information received, an injustice or hardship, or both exist.  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.  Additionally, it provides that soldiers whose application would normally be considered, but due to uncontrollable circumstances (such as collection before the immediate commander signed the application), the individual concerned may apply to the Board.

CONCLUSIONS:

1.  It appears to the Board that the applicant did everything that could reasonably be expected of a soldier in his situation.  He provided the documentation to the appropriate DFAS officials in a timely manner and received written notification of receipt from that office.  Accordingly, it was reasonable for him to presume that the allowances being provided directly to his dependents would cease once he provided documentation to show that they were no longer his dependents.

2.  However, it appears that the applicant relied, to his detriment, on the assumption that because the documents had been received by the appropriate office, that they would be sufficient to stop all payments to his former dependents.  As a result, he has incurred a debt that he otherwise would have been able to avoid had his documents been properly processed and had he been informed at the time if additional documents were necessary to stop any additional payments.

3.  Although the PERSCOM has remitted/cancelled as much of the debt as it is authorized ($3,127.48), it does not have the authority to return the remainder of the debt that has been collected.  Accordingly, the Board finds that it would be in the interest of justice to do so at this time.

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 by showing that the remainder of the debt incurred by the applicant, that has not been remitted/cancelled by the PERSCOM, is hereby remitted/cancelled by the Board and that any monies (including interest charges) collected as a result of the unjust debt be returned to him.  Additionally, any credit agencies that were notified of the debt should be notified that the debt was not valid.

BOARD VOTE:  

___rks __  __rvo ___  ___jpi ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2001060263	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/03/07	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  293	128.1000/REMIT DEBT	
2.		
3.		
4.		
5.		
6.