PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           4 November 2003                   
	DOCKET NUMBER:  AR2003083661

	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. Gail J. Wire		Member	
	Mr. Antonio Uribe		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 Date of Initial Entry to Military Service (DIEMS) date be adjusted to 1 August 1986 or later. 

3.  The applicant states, in effect, that he was erroneously paid a Career Status Bonus (CSB) after agreeing to being placed in a reduced retirement plan (REDUX).  He states that he entered this program after being informed by local unit administrative personnel that he was on the master list that had been generated by the Defense Finance and Accounting Service (DFAS).  He submits this application based on the options he was given in order to resolve his indebtedness to the government.  In support of his application, he submits copies of the following documents:  request for remission or cancellation of indebtedness; the notification of indebtedness memorandum from DFAS; his CSB election form (DD Form 2839); and a notification letter from the Department of the Army (DA) Deputy Chief of Staff, G-1.

4.  The applicant’s military records show that he enlisted in the delayed entry program (DEP) on 18 June 1986, and that he entered Regular Army (RA) on 
23 October 1986.  He has continuously served on active duty since he entered the RA and has attained the rank and pay grade of sergeant first class/E-7. 

5.  On 30 October 2001, the applicant completed a CSB election form that indicated that his service records confirmed that he was eligible to select a CSB. In this signed DA Form 2839, he also elected to receive a CSB in a one time 
lump-sum payment upon his attaining 15 years of active duty service, and confirmation of his eligibility by the appropriate Army officials.  

6.  A Deputy Chief of Staff, G-1 letter signed by the Chief, Compensation and Entitlements Division, dated 4 December 2002 notified the applicant that a small group of service members were erroneously paid a CSB for which he was not eligible, which thereby created a debt to the United States Government.  The memorandum indicated that those soldiers who erroneously received the CSB did not initially enter military service on or after 1 August 1986; therefore under the law, they are not eligible to elect for the bonus or for participation in the REDUX that accompanied the CSB.

7.  The G-1 letter also stated that the Office of the Under Secretary Of Defense (Personnel & Readiness) requested that the DFAS suspend pending collections so that it could review this matter.  However, after careful consideration it was decided that DFAS should resume normal collection actions for all erroneous CSB payments on 15 January 2003.  The applicant was provided the following options if he thought his case deserved special consideration: appeal the validity of the debt; request remission and cancellation of the debt; request waiver of the debt; and apply to the Army Board for Correction of Military Records.

8.  In an undated DFAS memorandum, the applicant was notified that based on a review of his account, he was erroneously paid a CSB and as a result was indebted to the Government in the amount of $30,000.00.  He acknowledged receipt of the pending debt collection and elected the option to protest the collection of debt by submitting a written statement outlining the reasons why the debt should not be collected.

9.  The applicant completed a statement in which he commented that he signed the CSB election paperwork after being informed by unit administrative personnel that his name was on the master list of eligible personnel provided by the finance office, and being briefed on the program.  He states that his name was scrubbed many times and his eligibility confirmed prior to receiving the bonus.  He states that he did nothing to defraud the government or to illegally report erroneous information pertaining to his eligibility for the program.  He states that the date in question 16 June 1986, the date he entered the USAR delayed entry program, which never had any tangible bearing on his military career.  He states that during the period he was in the DEP, he received no pay, accrued no service credit or retirement benefits, and until he was notified of his indebtedness to the government, he was not really sure what the DIEMS was.  He concludes that the error made was on the part of the Army and was through no fault of his and he requests that he and his family not be made to suffer the consequences of this administrative error.  

10.  In connection with the processing of this case, an advisory opinion was obtained from Department of the Army (DA), Recruiting Policy Branch, 
Office of the Deputy Chief of Staff, G-1.  The G-1 recommends that administrative relief be granted in this case because the debts appear to have been incurred as a result of administrative oversights by military separation personnel and were not the fault of the applicant.  The applicant was provided a copy of this G-1 opinion and concurred with its contents on 10 October 2003.

11.  Department of Defense Financial Regulation provides, in pertinent part, that the DIEMS date determines which retired pay formula(s) will be used.  It is not used for any other purpose (for example, it is not used in the retired pay computation).  In this, the DIEMS date is the date the soldier enlisted in the DEP, not the date the soldier came on active duty.  Paragraph 10101t states that for a Regular Component, time spent in the DEP is creditable only if the member entered the DEP prior to 1 January 1985.

12.  In accordance with the DA, G-1 Retirement Services Homepage, a DIEMS date is the earliest date of enlistment, induction, or appointment in a regular or reserve component of a uniformed service as a commissioned officer, warrant officer, or enlisted member.  Public Law 106-65 moved soldiers with DIEMS dates on or after 1 Aug 86 from the REDUX formula to the High-3 formula.  However, soldiers in this group who are eligible for retention to 20 years can now elect to use REDUX and receive a $30,000 CSB in their 15th year (called a CSB/REDUX election).  If they accept the $30,000 CSB, they must agree to serve a total of 20 years of active duty.

CONCLUSIONS:

1.  By law and regulation, soldiers who entered the Army on or after 1 August 1986 are eligible to elect CSB under the REDUX program.  The evidence of record confirms that the applicant believed and had been informed by unit administrative personnel that he was eligible for a CSB bonus and participation in the REDUX retirement program at the time he completed the DD Form 2839 CSB election form.  

2.  The evidence also shows that the applicant’s ineligibility for the program is based on his DEP enlistment date being prior to the DIEMS date established as the eligibility date for the REDUX program.  Further, voiding the DEP enlistment contract and changing the applicant’s DIEMS date accordingly would have no impact on the applicant’s earned benefits or future entitlements.  As a result, it would be appropriate to void the applicant’s DEP enlistment and allow him to remain in the REDUX program.  

3.  In view of the facts and circumstances in this case, it would serve the interest of justice and equity to grant the requested relief.  Therefore, it would be appropriate to void the applicant’s enlistment in the DEP on 18 June 1986, correct his DIEMS date to 23 October 1986, the date he entered active duty in the RA, and to reimburse him any portion of the CSB debt that may have already been collected.

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:

	a.  showing that the 18 June 1986 DEP enlistment of the individual concerned is null and void;

	b.  showing that he initially entered into the military on 23 October 1986, and adjusting his DIEMS date accordingly; 

	c.  showing that he was fully eligible for the CSB he received and participation in the REDUX retirement program based upon his adjusted DIEMS date; and 

d.  reimbursing him any portion of the CSB that may have already been collected as a debt to the government. 

BOARD VOTE:  

FE___  __GW___  __AU __       GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Fred N. Eichorn
		CHAIRPERSON

INDEX

CASE ID	AR2003083661	
SUFFIX		
RECON		
DATE BOARDED	2003/10/DD	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  231	112.0900	
2.		
3.		
4.		
5.		
6.