MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 April 2003
         DOCKET NUMBER: AR2002082371

         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 J. Wagner		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Linda M. Barker		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, cancellation or remission of her indebtedness.

APPLICANT STATES: In effect, that she maintained the required language proficiency throughout the entire period of time she was receiving the pay. She claims that priority mission requirements at the time caused a lapse in testing and the debt would now cause her undue hardship. In support of her application, she provides her Application for Remission or Cancellation of Indebtedness
(DA Form 3508-R) that she submitted on 8 September 2002, and the accompanying supporting unit and garrison commanders recommendations; a July 2002 leave and earnings statement (LES); Language Proficiency Questionnaires (DA Form 330) for June 2002, May 2000, April 1999, and March 1998; and retirement orders.

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

On 15 August 2002, the applicant was notified that she was indebted to the Army in the amount of $3,000.00 for Foreign Language Proficiency Pay (FLPP). On
20 August 2002, she completed a Sworn Statement (DA Form 2823) requesting a waiver of the debt. In her statement, she indicated that in August 2000, she attended a Spanish refresher course and upon completion of the course, on
10 August 2000, she took the Defense Language Proficiency Test and scored 2+/3. She further claims that the DA Form 330 for the period August 2000 through August 2001 that should have resulted from her testing at the course was never forwarded, and orders were never published. She also claimed that she had unsuccessfully attempted to retrieve this form on three separate occasions. She further claimed that because of heavy mission requirements during the period, she failed to realize that her current DA Form 330 had lapsed, and once she realized that it had, she took the test in June 2002. She again scored 2+/3, the same score she attained on previous tests in 1998, 1999, and 2000. The applicant also outlined her future retirement plans and financial commitments in order to support her claim that payment of the debt would cause her undue and extreme financial distress. She concluded that for the reasons stated, and because she had maintained her language proficiency throughout the period in question, the debt should be waived.

On 29 August 2002, the applicant’s unit commander completed a memorandum in which he recommended that the applicant’s request for a waiver of her debt be approved. He stated that he had reviewed the applicant’s DA Form 3508-R and was satisfied that collection of the debt would create an undue hardship on the applicant. He further indicated that it was his belief that the collection was unjust. He stated that the applicant had maintained a consistent language proficiency, which would entitle her to language payments. He claimed that the indebtedness was created by an administrative error that was beyond the applicant’s control.

The applicant’s unit commander further stated that the applicant was a person with very high standards of conduct, integrity being a framework from which she operated. He stated that had the applicant known that the administrative paperwork was not properly documented she would have quickly rectified the problem. He further stated that since March 1998, the applicant had consistently qualified for the language proficiency pay in question, and her last test scores indicated that she had not lost any language proficiency from previously documented test scores. He stated that had the administrative paperwork been properly documented, she would have been paid these monies. He concluded by indicating that the applicant had remained proficient in her language and should have retained entitlement to the pay. Finally, he stated that he strongly recommended approval of the waiver of the applicant’s debt because it was unjust and would financially hurt the applicant.

On 6 September 2002, the applicant’s garrison commander recommended approval of the applicant’s request for a waiver of the debt, and on 8 September 2002, the applicant submitted a DA Form 3508-R requesting remission or cancellation of her debt.

On 10 September 2002, the Defense Military Pay Officer, Indianapolis, Indiana, recommended that the applicant’s debt not be remitted. He further stated that the applicant was aware of the requirement to test once a year to continue her entitlement to FLPP, and that she needed orders once she was tested.

On 23 October 2002, the Chief, Special Actions Branch, U.S. Total Army Personnel Command (PERSCOM), notified the applicant’s commander that the applicant’s request for remission or cancellation of indebtedness had been reviewed in accordance with the governing regulation, and was not favorably considered.

Army Regulation 600-4 gives instructions for submitting and processing applications for remission or cancellation of indebtedness to the United States Army. Applications must be based on injustice, hardship, or both. The regulation states, in pertinent part, that one of the factors to consider in determining injustice or hardship is the soldier's awareness of policy and procedures.

Army Regulation 600-6 prescribes the policies and procedures for the management of Army linguists. Chapter 3 contains guidance on evaluation and reevaluation of language proficiency. It states, in pertinent part, that soldiers requiring a language proficiency will be evaluated in their languages annually.
Chapter 6 contains the criteria for receiving FLPP and it states, in pertinent part, that active Army soldiers must be certified proficient within the past 12 months.

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 evidence of record confirms that the applicant was receiving FLPP since at least since 1998, and as a result was or should have been aware of the annual testing and certification process that was required to continue to receive this special pay. Notwithstanding the fact that she was tested and certified prior and subsequent to the period in question, it is clear she failed to satisfy the reevaluation certification requirements for the period in question. Thus, the Board finds no injustice related to the FLPP debt in question.

2. The Board also carefully considered the applicant’s claim of financial hardship. However, the record also confirms that her request for the remission or cancellation of the debt was properly processed, considered, and denied by the proper PERSCOM authority. Lacking any additional evidence that renders the PERSCOM decision inequitable, the Board finds no error or injustice related to the denial and no evidentiary basis to support granting the requested relief.

3. 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.

4. 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

___rjw __ ___bje __ ___lb ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082371
SUFFIX
RECON
DATE BOARDED	2003/04/08
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. 293	128.1000
2.
3.
4.
5.
6.