PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 14 March 2002
         DOCKET NUMBER: AR2001066095


         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:

Ms. JoAnn H. Langston		Chairperson
Mr. Walter T. Morrison		Member
Mr. Roger W. Able		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.

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2. The applicant requests, in effect, remission or cancellation of his debt to the Army and reimbursement of the debt already collected.

3. The applicant states, in effect, that his debt to the government is based on the incorrect calculation of his prior periods of service and assignment of an incorrect pay entry basic date (PEBD). He claims that this incorrect date was established through no fault of his own and that he should not be forced to be unjustly penalized for this error in his record. The applicant claims that several incorrect Department of the Army (DA) Forms 1506 (Statement of Service-Computation of Length of Service for Pay Purposes) were submitted on him and that one prepared on 1 December 1998, resulted in the erroneous debt. He further indicates that a correct statement of service was later submitted that corrected his PBED and that he attempted to resolve this error by submitting applications for remission or cancellation of the debt. However, his first request was lost by the local finance office and the second request was returned without action by the Total Army Personnel Command (PERSCOM) because the debt had been collected prior to the date the unit commander signed the application, which by regulation prohibited remission or cancellation of his debt. In support of his application, he provides a statement from his unit commander, a DA Form 1506, dated 26 October 2000, and leave and earnings statements (LESs) for the pay periods 1-31 January 1999, 1-28 February 2000, 1-30 September 2000, and 1-31 October 2000.

4. The applicant’s military records show that on 16 May 1984, he enlisted in the Army National Guard (ARNG) and served for 1 year, 7 months, and 2 days, until 18 December 1985, at which time he was honorably separated. The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) issued to the applicant at the completion of this period of service confirms that the termination of his military service obligation (MSO) was 15 May 1990.

5. On 5 February 1986, the applicant entered active duty in the United Sates Navy (USN) and continuously served in that status for 2 years, 5 months, and
26 days, until being honorably separated on 1 August 1988.

6. The latest Department of the Army (DA) Form 1506 (Statement of Service for Computation of Length of Service for Pay Purposes) on file also shows that the applicant served in the ARNG Individual Ready Reserve (IRR) from 2 August 1988 through 15 May 1990 and the United States Army Reserve (USAR) from
1 April 1993 through 31 March 1994.

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7. On 1 April 1994, the applicant entered the RA and he has continuously served on active duty in that status since that date. He currently holds the rank of specialist/E-4 (SPC) and is serving in military occupational specialty (MOS)
91B (medical specialist), at Fort Sam Houston, Texas.

8. On 15 September 1999, the applicant’s unit commander was notified by the Defense Military Pay Officer, Fort Sam Houston, Texas, that the applicant was indebted to the government in the amount of $1,154.34 and that this debt was due by 15 October 1999. The unit commander was also advised of the procedures for applying for cancellation or remission of the debt and that collection of the debt would be suspended only if it could be shown that collection of the debt would cause undue hardship.

9. On 4 October 1999, the applicant’s unit commander forwarded the applicant’s written protest of the debt to the military pay office, Fort Sam Houston, Texas, which included a statement from the applicant that indicated that a statement of service had never been done when he initially enlisted in the RA or at anytime prior to his reenlistment processing in 1997. Therefore, he claimed that it was through no fault of his own that his PEBD was incorrect.

10. There is no record of the processing of the applicant’s original application for cancellation or remission of debt, but the applicant’s unit commander indicated the application packet was lost at the local finance office. On 13 July 2000, the applicant submitted an application for remission or cancellation of indebtedness (DA 3508-R) and on 14 August 2000, the applicant’s unit commander recommended approval of the application.

11. In his approval endorsement, the unit commander stated that he had evaluated all the evidence presented by the applicant. This included the DA Forms 1506 that contained service credit that resulted in the inconsistent PEBD assigned and which resulted in the debt incurred by the applicant. The unit commander indicated this debt was incurred due to the administrative error in the calculation of the applicant’s PEBD and was through no fault of the applicant. Finally, the unit commander indicated that collection of this debt would create a hardship on the applicant.

12. The last DA Form 1506 prepared on the applicant, dated 2 February 2000, was prepared by the military personnel records branch, Fort Sam Houston, Texas. This statement of service credits the applicant with the completion of
7 years of creditable military service for pay purposes prior to his 1 April 1994 enlistment in the RA. This is the document the unit commander claims should have used in establishing the applicant’s PEBD.

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13. On 26 October 2000, the Chief, Special Actions Branch, Total Army Personnel Command (PERSCOM), responded to the applicant’s request for remission or cancellation of indebtedness. This response indicated that by regulation, the applicant’s request was being returned without action. PERSCOM officials indicated that by regulation, because the debt was collected prior to the date the unit commander signed the applicant’s request, processing the request was prohibited. The applicant was advised that if he felt an injustice had occurred surrounding the collected portion of the debt, he could apply to this Board for relief.

14. The applicant’s unit commander provided a statement in support of the applicant’s request to this Board. He indicates that the applicant’s request should be approved and comments that the command submitted paperwork to correct the applicant’s time in service and that action was completed. However, the debt wrongfully incurred by the applicant based on the prior incorrectly calculated time in service was never cancelled and two requests for remission or cancellation of the debt submitted by the applicant were never acted upon. The unit commander indicates that the applicant’s first request was lost by the local finance office and the second request was not completed prior to the debt being collected. Therefore, by regulation, PERSCOM was prohibited from canceling or remitting the applicant’s debt. The commander concludes his statement by indicating that the applicant has serious financial difficulties and this wrongful debt has compounded his situation and created a hardship on the applicant. Finally, the unit commander states that the expedient return of the debt collected would help the applicant resolve his financial issues.

15. Army Regulation 600-4 provides the policy and procedure for submitting applications for the remission or cancellation of indebtedness to the Army based on hardship, injustice, or both. It further states, in pertinent part, that in determining if injustice or hardship exists the soldier’s income, expenses, and a member’s contribution to the indebtedness by not having the situation corrected will be considered.

CONCLUSIONS:

1. The Board notes the applicant’s contentions that administrative error was the reason his application for cancellation or remission of indebtedness to the Army was not processed in a timely manner and that the debt he incurred was erroneous and through no fault of his own; and it finds these claims have merit.

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2. By regulation, a remission or cancellation of indebtedness to the Army may be approved based on hardship, injustice, or both. The regulation further stipulates that determining if injustice or hardship exists the soldier’s income, expenses, and contribution to the indebtedness by not having the situation corrected will be considered.

3. The evidence of record confirms that the applicant’s original application for remission or cancellation of indebtedness to the Army was lost by the local finance office and that this attempt by the applicant to resolve the situation was not processed in a timely manner due to this administrative error. Further, the applicant’s unit commander verifies that the debt incurred by the applicant was erroneous and based on incorrect calculations of his prior creditable military service that have since been corrected and that collection of this debt has created a hardship for the applicant.

4. In view of the facts of this case, the Board concludes there is a sufficient evidence to support the cancellation or remission of the applicant’s indebtedness to the Army and it further finds that it would be appropriate to reimburse the applicant the portion of the debt already collected.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the request for cancellation or remission of indebtedness to the Army submitted by the individual concerned was approved prior to the debt being collected and by reimbursing him the portion of the debt already collected.

BOARD VOTE:

__JHL__ __WTM__ __RWA__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __JoAnn H. Langston__
                  CHAIRPERSON

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INDEX

CASE ID	AR2001066095
SUFFIX
RECON
DATE BOARDED	2002/03/14
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 293	128.1000
2.
3.
4.
5.
6.