RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 SEPTEMBER 2004
      DOCKET NUMBER:  AR2003099294


      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. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Roger Able                    |     |Member               |
|     |Ms. Eloise Prendergast            |     |Member               |

      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 his records be corrected to
void his $1723.00 debt to the government resulting from erroneous payment
of FLPP (Foreign Language Proficiency Pay).

2.  The applicant states, in effect, that he recently found out that the
reason his request to cancel his debt was denied was because his commander
signed his request after the collection process had already started.  He
states that when he was notified of the debt he immediately initiated his
request to have the debt remitted or cancelled.  However, he notes that by
the time he was able to gather the information and completed the
application a portion of the debt had already been collected from his pay
account.

3.  The applicant states that it is not easy to get all of the people
involved “with a snap of the fingers” and believes that it is “unjust
considering the time constrain [sic] in the unit.”

4.  The applicant provides a copy of the notification from the Human
Resources Command-Alexandria denying his request to have the debt waived
and a copy of his debt remission/cancellation request.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant, who was
born and raised in Puerto Rico, entered active duty as an enlisted Soldier
in 1983.  His enlistment documents indicate that he was fluent in Spanish.

2.  The applicant was initially trained as a cook but was reclassified as a
recruiter following completion of the Army Recruiter Course in 1989.  In
March 1993 he was promoted to pay grade E-7.

3.  Although his OMPF (Official Military Personnel File) does not contain a
copy of any orders awarding him a Special Qualification Indicator (SQI) the
SQI “L” first appears in the MOS (Military Occupational Specialty) space on
a performance evaluation report completed in August 1998.  The SQI “L”
identifies qualified linguists.

4.  Documents contained in the applicant’s request for remission or
cancellation of indebtedness indicate that the applicant began receiving
FLPP in June 2000.  On the actual application form, the applicant indicated
that his debt was “incurred” on 31 December 2001.  However, in a self-
authored statement he indicated that he was notified of the debt in July
2003, although his commander indicated in his statement of support that the
applicant was notified of the debt in May 2003.

5.  In the applicant’s self-authored statement and in the commander’s
statement of support both raise the issue that the applicant was unaware
that “the regulation” had changed requiring him be tested annually for
proficiency in order to retain entitlement to FLPP.  They also argued that
the repayment of the $1732.00 debt would be a financial burden.

6.  The applicant signed his application for remission or cancellation of
debt on
2 September 2003, the same day that his commander signed the application
form.

7.  A 28 October 2003 letter from the Chief Special Actions Branch, Human
Resources Command-Alexandria, notified the applicant that his “application
is not favorably considered in the amount of $1507.00.  Since $255.00 of
the indebtedness was collected prior to the commander’s signature on the
application, it cannot be considered for remission or cancellation….”

8.  The National Defense Authorization Act of 1987 established FLPP for a
member of the armed forces “who has been certified by the Secretary
concerned within the past 12 months to be proficient in a foreign language
identified by the Secretary of Defense as being a language in which it is
necessary to have personnel proficient because of national defense
consideration.”

9.  Department of the Army (DA) Regulation 611-6, which establishes
policies and provisions for the selection and classification of Army
linguist programs, was last published in 1996.  Even then the regulation
noted that “proficiency will be tested annually” and that “Soldiers must be
certified proficient within the past 12 months in a foreign language for
which the Department of Defense has a critical need.  Orders authorizing
FLPP are effective for not longer than 12 months from the evaluation date
on the DA Form 330 [Language Proficiency Questionnaire].”

10.  Department of the Army Regulation 611-6 also stated that the DA Form
330 or 330-E was the sole-source document for eligibility for FLPP and for
award and withdrawal of SQI “L.”

11.  In 1996 Spanish was one of the languages identified by the Secretary
of Defense as eligible for FLPP and as of 2004 was still identified as such
a language.

12.  Army Regulation 600-4, paragraph 1-11b states that the Commander,
PERSCOM (United States Total Army Personnel Command), now known as the
United States Army Human Resources Command-Alexandria, will not consider a
request for remission of cancellation of a debt which “was repaid or
collected before the immediate commander signed the DA Form 3508-R
(Application for Remission or Cancellation of Indebtedness).”

13.  The Comptroller General of the United States has ruled in similar
cases that although a service member may have been misinformed about his
entitlements, the Government is not liable for the erroneous actions of its
officers, agents, or employees in the performance of their official duties.

DISCUSSION AND CONCLUSIONS:

1.  Based on the documents available to the Board, it is unclear if the
applicant’s debt was established in 2001 as indicated on his application
for remission or cancellation of debt or if it was established in 2003 when
he states he was notified of the debt.  However, notwithstanding when the
debt was established, his argument that his request was denied solely
because his commander signed the application after a portion of the debt
had already been collected is without foundation.

2.  The October 2003 document notifying the applicant that his request for
remission or cancellation of debt was denied indicates that the $225.00
collected from his pay prior to the date the applicant’s commander signed
his application was not considered “for remission or cancellation….”
However, the remaining portion of the debt, in the amount of $1507.00, was
not favorably considered for remission or cancellation.  The basis for that
decision, although not specifically delineated in the notification
document, was not because the applicant’s commander had signed the
application form after a portion of the debt had already been collected.

3.  The applicant’s argument that he was unaware of a change in the
regulation is also without foundation.  The evidence indicates that
entitlement to FLPP has always been based on certification within the
previous 12 months of an accepted level of proficiency.

4.  The applicant was a recruiter, serving in pay grade E-7, with
approximately 16 years of active Federal service at the time he began
receiving FLPP in 2000.  In order to begin receiving that pay a Department
of the Army Form 330 would have had to be completed for the applicant.
That form would have involved a proficiency test of some sort.  Based on
the applicant’s grade and years of service he should have been aware of the
requirements for continued entitlement to FLPP and as such, bears
responsibility for the receipt of FLPP payments to which he was not
entitled.  While the financial hardship that might result from his having
to repay the debt is unfortunate, it is not sufficiently mitigating to
excuse the applicant.

5.  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 that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RW__  ___RA __  ___EP __  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.





                                  ___ _Raymond Wagner______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2003099294                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040923                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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