RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           8 January 2004                   
	DOCKET NUMBER:   AR2003086768

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. John T. Meixell		Member	
	Ms. Linda M. Barker		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that the remaining balance of $3,457.23, a debt that he incurred as a result of being erroneously paid by the Defense Finance and Accounting Service (DFAS), be remitted or cancelled.

2.  The applicant states, in essence, that he believes he did everything in his power to stop DFAS from paying him staff sergeant's (SSG's) pay.  He states he had numerous discussions with DFAS personnel, promotions personnel, and the Criminal Investigation (Division) Command (CID) about his promotion to SSG.  He was under the impression that he would be able to keep the rank.  

3.  The applicant provides in support of his request Orders 78-008, dated 19 March 2001, promoting him to staff sergeant (SSG/E-6); a sworn statement, dated 2 July 2002, detailing his pay problem; a copy of his packet for remission or cancellation of indebtedness, dated 24 January 2003; and memoranda, dated 27 November 2002 and 13 February 2003.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is currently a Regular Army SSG serving with a CID unit in Germany.  At the time that he began accruing the debt from which he requests relief, he was serving in the 1st Battalion, 72nd Armor, Camp Casey, Korea, in military occupational specialty (MOS) 11C, Indirect Fire Infantryman.

2.  The applicant was a sergeant (SGT/E-5) serving in Korea.  He applied for acceptance to the Apprentice Special Agent Course (ASAC) in order to become a CID agent.  A condition of acceptance into the ASAC program was that the applicant be in a grade no higher than SGT/E-5.

3.  The applicant was selected for promotion to SSG/E-6 in MOS 11C.  Orders 78-008, dated 19 March 2001, established his date of rank to SSG as 1 April 2001.  In order to remain an applicant for the ASAC program, the applicant formally declined the promotion.  However, effective 1 April 2001, he began receiving pay as an SSG.

4.  The applicant's various efforts to correct his overpayment are not available, but he indicated in a sworn statement, dated 2 July 2002, that he made numerous attempts to stop the overpayments while in Korea, but he kept being told by finance personnel that it would take time.

5.  Upon arrival at the ASAC course at Fort Leonard Wood in January 2002, the applicant immediately informed his unit personnel clerk and the local finance office of his pay problem and the overpayment was finally stopped.  He received SSG pay from April 2001 through March 2002.  The total amount of overpayment was determined to be $6,914.46.  The applicant states that he and his wife (now ex-wife) spent the monies that he received in overpayment on bills and family expenses.

6.  Upon completion of the ASAC course, the applicant was transferred to Fort Hood, Texas.  He requested remission or cancellation of his indebtedness.  On 27 November 2002, the Commander, 215th Finance Battalion forwarded the applicant's request to the US Total Army Personnel Command (PERSCOM), Alexandria, Virginia, recommending approval.

7.  On 13 February 2003, PERSCOM partially approved the applicant's request for remission or cancellation of his debt in the amount of $3,457.23 (which was one half of the total of the debt incurred).  PERSCOM stated that it was determined there were no grounds to remit or cancel the remaining portion of the debt on the basis of injustice or hardship.  The applicant was also advised that he should contact DFAS to arrange for repayment of the outstanding balance in the amount of $3,457.23. 

8.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence available indicates that the applicant was erroneously overpaid and that he incurred a debt to the Government in the amount of $ 6,914.46.  The applicant's debt was a valid debt.

2.  During the entire time that the applicant was overpaid, he was fully aware that he was being overpaid.  Even though it appears that he took every appropriate means to correct the problem, he made no effort to put the overpayment aside against a future date when it would be collected.  Instead, by his own admission, he and his ex-wife spent it.

3.  PERSCOM generously remitted or cancelled one half of the applicant's debt, but upheld a debt in the amount of $3,457.23.  Since the applicant benefited from the use of all $6,914.46 and PERSCOM is only requiring him to repay $3,457.23, it appears fair that the applicant assumes the responsibility to repay that portion of the outstanding balance still remaining.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__kan___  __jtm___  __lmb___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

			Kathleen A. Newman
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003086768	
SUFFIX		
RECON		
DATE BOARDED	20040108	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.0800	
2.		
3.		
4.		
5.		
6.