MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2001061531

         I certify that hereinafter is recorded the record of consideration 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. Raymond V. O'Connor, Jr.		Chairperson
Ms. Celia L. Adolphi		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that she be released from her debt to the Army.

APPLICANT STATES: In effect, that she was informed that she would continue to receive active duty pay and allowances for 6 months subsequent to her release from active duty (REFRAD) and that is exactly what happened. She claims that she was not at fault for the overpayment from the government and that is why she is asking that she be released from this debt.

EVIDENCE OF RECORD: The applicant's military records show:

She entered active duty on 25 September 1980 and continuously served until being honorably separated on 3 March 1992. The record also shows that the highest rank she attained while serving on active duty was specialist/E-4
(SPC/E-4) and that she earned the following awards and decorations during her active duty tenure: Army Achievement Medal (2^nd Oak Leaf Cluster); Good Conduct Medal (3^rd Award); National Defense Service Medal; Army Service Ribbon; Overseas Service Ribbon; Sharpshooter Marksmanship Badge
(M-16 Rifle); and Army Lapel Button.

On 15 January 1992, the applicant requested separation under the provisions of the Fiscal Year 1992 (FY92) Enlisted Voluntary Early Transition Program with a Special Separation Benefit (SSB). In her request, she acknowledged her understanding that the Army would recoup any unearned portions of any enlistment bonuses, selective reenlistment bonuses, or monies related to negative leave balances. She also indicated that she would complete the separation transition counseling checklist and accept pre-transition counseling pertaining to post service employment, job assistance, extended benefit entitlement, and relocation assistance.

On 3 February 1992, the separation authority approved the applicant’s request for separation and on 19 February 1992, Orders Number 050-734 were published by Headquarters, United States Army Infantry Center (USAIC), Fort Benning, Georgia. This order authorized the applicant’s REFRAD on 3 March 1992. It also authorized the following Transition Assistance Management Program (TAMP) extended benefits: extended health benefits until 4 July 1992; extended commissary and exchange privileges until 4 March 1994; and a SSB lump sum payment.

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Accordingly, on 3 March 1992, the applicant was honorably REFRAD after completing a total of 11 years, 5 months, and 9 days of active military service. The separation document (DD Form 214), issued to and authenticated by the applicant with her signature on the date of her separation, confirms that she was separated in accordance with paragraph 16-8, Army Regulation 635-200 under the provisions of the FY92 Enlisted Voluntary Early Transition Program with a lump sum SSB payment of $24,992.76.

On 5 August 1994, the applicant was informed by the Special Agent in Charge of the Criminal Investigation Division (CID), Fort Benning, Georgia, that an investigation was being conducted concerning her continued receipt of Army pay and allowances from 3 March to 15 November 1992, which had resulted in an overpayment of $10,960.87. This notification letter indicated that numerous unsuccessful attempts had been made to contact the applicant at her residence and through her family and that it was important that she contact the CID office as soon as possible in order to resolve this matter.

On 24 February 1996, the applicant submitted a letter to DFAS, Indianapolis, Indiana, requesting a waiver for the money she owed the government because she claimed it was not her fault. The applicant indicated in this letter that she had been REFRAD with a SSB and told she would continue to get paid for
6 months and that is exactly what happened.

On 29 July 1997, the applicant was notified in a letter from the Customer Service Branch, Directorate of Debt and Claims Management, Defense Finance and Accounting Service (DFAS), Denver Center, that the records indicated that she owed a debt in the amount of $13, 308.33, which included her overpayment of Army pay and allowances; in addition, to interest that had accrued on this debt.

On 13 September 2000, a claims examiner from the DFAS, Denver office, informed the applicant by letter that if she felt she was treated unfairly or that her debt was the result of an error or injustice, the avenue for relief available to her was to apply to this Board.

Military Personnel (MILPER) Message (MSG) Number 92-85 contained the implementing instructions for the FY92 Enlisted Voluntary Early Transition Program. It stated, in pertinent part, that soldiers approved for separation with a SSB would be paid a lump sum benefit equal to 15 percent of the basic monthly pay received on the date of the soldier’s separation, multiplied by 12 and multiplied again by the soldier’s years in service.

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MILPER MSG 92-85 also stipulated, in pertinent part, that soldiers separating with a SSB would also be entitled to extended health benefits for 120 days and extended commissary and exchange benefits for 2 years after separation. This message that governed the FY92 Enlisted Voluntary Incentive Program and accompanying transition benefits provided no authority or suggestion that members would be entitled to continued active duty pay and allowances subsequent to their separation.

Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members) gives instructions for submitting and processing applications for remission or cancellation of indebtedness to the United States Army. It states that applications must be based on injustice, hardship, or both. This includes debts caused by errors in pay to or on behalf of a soldier.

Paragraph 1-6 states, in pertinent part, that indebtedness to the U.S. Army may be remitted or canceled under 10 USC 4837 in cases arising from payments made in error to a soldier; payments made in excess of an allowance on behalf of a soldier; debts incurred while serving as an officer of the U.S. Army; debts acknowledged as valid; debts for which an appeal has been denied. Paragraph 1-12 contains the factors to be considered in determining if there is an error or injustice related to a soldiers debt to the government. It states, in pertinent part, that the applicant’s awareness of the policy and procedure and their contribution to the indebtedness by not having the situation corrected are pertinent in determining error or injustice.

Paragraph 1-13 and 1-14 contain additional factors to consider in determining injustice or hardship. They state, in pertinent part, that in determining injustice, it should be determined that the applicant did not and could not have known of the error and that he/she inquired about the error and was told the payment was correct. A factor in determining if a hardship exists is if the repayment would cause hardship because of excessive monthly expenses due to the applicant living in a high cost area, living apart from family because of military orders, the number and ages of family members, any medical and dental bills that cannot be reimbursed; or any other unusual expenses.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes the applicant’s claim that her debt should be excused because she was not at fault and was told that she would continue to receive pay for 6 months after her separation. However, it finds insufficient evidence to support these claims.

2. By regulation, in order to cancel or remit a debt to the government, it must be established that there is an error or injustice related to the debt. To establish an error, it must be determined that the applicant did not and could not have known of the error and that he/she inquired about the error and was told the payment was correct. To establish injustice, it must be determined that a hardship exists and/or that repayment of the debt would cause the applicant undue hardship as a result of certain uncontrollable factors.

3. The evidence of record confirms that the applicant voluntarily requested separation under the provisions of the FY92 Enlisted Voluntary Early Transition Program, as announced in MILPER MSG Number 92-85. This message clearly established the additional transition benefits to which a soldier was entitled if they were separating with a SSB. These entitlements included extended health care benefits for 120 days and extended exchange and commissary benefits for
2 years. However, no entitlement to additional active duty pay and allowances subsequent to a soldier’s REFRAD was authorized for members separating under this voluntary separation program.

4. The record also confirms that in her request for separation, the applicant committed to receiving transition counseling and to completing the pre-separation transition counseling worksheet. In addition, the orders authorizing her separation verified that her voluntary separation under the provisions of the
FY92 Enlisted Voluntary Early Transition Program entitled her to receive a lump sum SSB payment of $24,992.00, extended health care benefits for 120 days, and extended exchange and commissary benefits for 2 years.

5. The record also clearly establishes that the order authorizing the applicant’s separation contained no authorization for her to continue to receive active duty pay and allowances subsequent to her separation. In addition, the separation documents prepared during her processing, to include her DD Form 214, contain no suggestion that she would receive additional active duty pay after her REFRAD.

6. In view of the facts of this case, the Board concludes that the applicant was or should have been aware of the transition benefit and entitlement policy connected to her separation with a SSB and there was no basis for her having an expectation that she would receive active duty pay and allowances for 6 months subsequent to her REFRAD.

7. Further, the Board finds that the applicant has failed to provide independent evidence that establishes that there was an error or injustice related to her debt to the government or that payment of her debt would cause her undue hardship, and therefore, it is compelled to deny the requested relief.

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8. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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

9. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001061531
SUFFIX
RECON
DATE BOARDED	2002/02/28
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1026	112.1200
2.
3.
4.
5.
6.