RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           JANUARY 27, 2004                  
	DOCKET NUMBER:   AR2003088436

	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. Deyon D. Battle		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Yolanda Maldonado		Member	
	Mr. Lester Echols		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, remission of a debt owed to the government. 

2.  The applicant states, in effect, that she never received pay under a different Social Security Account Number (SSAN) and that she did not receive a 
Wage and Earnings Statement (W2) reflecting the incorrect SSAN.

3.  The applicant provides a copy of a Report of Confidential Social Security Benefit Information (Form SSA-2458) dated 1 November 2002; a copy of a printout from the Social Security Administration dated 1 November 2002, verifying her correct SSN; a printout of Federal Insurance Contribution Act (FICA) summary of earnings for 1967 through 2001; a copy of a letter to her from the Defense Finance and Accounting Service (DFAS) dated 10 April 2000, verifying the correct amount of the debt owed; a copy of a Statement of Military Pay Account (DFAS-DE Form 0-641) showing the pay dates involved and when the deposits were posted in her account; copies of letters dated 23 March 2001 and 15 March 2002 from the Department of the Treasury showing that the Internal Revenue Service (IRS) applied her refunds to the debt; and an account statement from DFAS dated 29 July 2002, showing the amount due and requesting that the debt be paid.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error, which occurred on 23 July 1992.  The application submitted in this case is dated 1 November 2002.  

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 28 September 1983, she enlisted in the Delaware Army National Guard (DEARNG) for 6 years in the pay grade of E-1.  On 27 October 1983, she was ordered to active duty for training (ADT) for 17 weeks and 6 days with a reporting date of 20 February 1984.  She successfully completed her training as a combat signal specialist.  She was released from ADT on 15 September 1984 and she returned to the DEARNG.  On 3 June 1988, the applicant extended her 6-year enlistment for an additional 5 years.

4.  The applicant was discharged from the DEARNG on 1 August 1989 and she was transferred to the United States Army Reserve (USAR) Control Group (Annual Training) to complete her USAR obligation.

5.  On 28 July 1991, the applicant was ordered to active duty in support of Operation Desert Storm/Shield.  She completed 11 months and 26 days of active service for this period.  On 23 July 1992, she was released from active duty and she transferred to the USAR Control Group (Reinforcement) to complete her reserve obligation.

6.  On 10 April 2000, in response to an inquiry from the applicant to DFAS regarding her account, the DFAS informed her that her pay account had been reexamined and that a determination was made that the principal debt of $14,872.70 was incorrect.  The DFAS informed her that the debt was being increased to $15,109.25 due to corrections to the posting of clothing allowance and accrued leave to the incorrect account.  The DFAS stated that the debt was based on direct deposits made into her checking account at Delaware Trust and copies of her bank statements were enclosed, which indicated that deposits from the United States Army were made into her checking account under two different SSANs (SSANs are identical except for the last two numbers, which appear to be transposed).  The DFAS also furnished the applicant with a DFAS-DE Form 
0-641, which shows the pay dates involved and when the deposits were posted to her account.  The DFAS informed her that since no deposits were returned, the debt of $15,109.25 was correct and must be repaid.

7.  In the letter to the applicant dated 10 April 2000, the DFAS makes reference to an investigation performed by the Criminal Investigation Command, during which she indicated that she did not receive her bank statement, but rather she used her bankcard.  The DFAS contended that a prudent individual would have questioned the availability of funds, which would have exceeded her normal pay and allowances for her grade and years of service.  The DFAS concluded the letter by stating that according to the Criminal Investigation Command report, she did not question the validity of any overpayment until she was notified of the original debt in 1992.

8.  On 1 November 2002, the applicant obtained a Form SSA-2458 from the Social Security Administration.  Handwritten on the form is a statement verifying that the SSAN on the form is the applicant’s SSAN and that United States Army earnings were never posted to the erroneous SSAN.  The statement further explains that the erroneous SSAN belongs to another party altogether and that due to privacy regulations the Social Security Administration cannot release any information regarding the other party.  In the statement, the Social Security Administration verified that the applicant has been issued only one SSAN.  

9.  Army Regulation 600-4 provides the instructions for submitting and processing applications for remission or cancellation of indebtedness to the United States that resulted while on active duty.  Applications must be based on injustice, extreme hardship, or both.  This includes debts caused by error made in pay to or on behalf of soldiers.  Cases submitted based on hardship, require evidence to show that collection of the debt will cause a financial hardship to the soldier and or his family.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show 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.  Although the applicant was provided documentation from the Social Security Administration to show that she has been furnished only one SSAN, the available evidence of record shows that she was receiving pay from the Army in both SSANs and that the pay was being deposited into her checking account.  She made no attempts to question the validity of overpayment; therefore, the debt is valid and it should be repaid.

3.  Additionally, the applicant was initially notified regarding this debt in 1992.  She has submitted no evidence to show that she has attempted to pay the debt or any portion thereof.  Her contention that she did not receive a W2 Form for the money that she received under the erroneous SSAN is not a sufficient basis for remitting the debt and there appears to be no injustice in this case.

4.  Moreover, the applicant has not submitted any documentation to show that she is unable to repay the debt or that repaying the debt would cause an extreme financial hardship to her and her family.  There is simply no basis for granting the relief requested.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 July 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 22 July 1995.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

aao_____  le_    ____  ym  _  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		___Arthur A. Omartian___
		        CHAIRPERSON

INDEX

CASE ID	AR2003088436	
SUFFIX		
RECON		
DATE BOARDED	20040127	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  293	128.1000.0000	
2.		
3.		
4.		
5.		
6.