PROCEEDINGS


         IN THE CASE OF
        

         BOARD DATE: 4 November 2003
         DOCKET NUMBER: AR2003083653

         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:

Mr. Fred N. Eichorn		Chairperson
Ms. Gail J. Wire		Member
Mr. Antonio Uribe		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, that his Date of Initial Entry to Military Service (DIEMS) date be adjusted to 1 August 1986 or later.

3. The applicant states, in effect, that he was erroneously paid a Career Status Bonus (CSB) due to the improper advice he received from a retirement specialist. He states that correcting his DIEMS date to 1 August 1986 or later will in fact make him eligible for the CSB, and place him in the reduced retirement plan (REDUX). He also claims that changing his DIEMS date will suspend repayment of the CSB and prevent a financial hardship on his family. In support of his application, he submits copies of the following documents: request for remission or cancellation of indebtedness; undated Defense Finance and Accounting Service (DFAS) memorandum, Subject: Notification of Indebtedness to the United States Government; CSB election form (DD Form 2839); Enlisted Records Brief (ERB); Personnel Qualification Record (DA Form 2-1); and an undated Deputy Chief of Staff, G-1, letter.

4. The applicant’s military records show that he enlisted in the delayed entry program (DEP) on 4 April 1986, and that he entered Regular Army (RA) on
14 August 1986. He has continuously served on active duty since he entered the RA and has attained the rank and pay grade of sergeant first class/E-7, and he is currently performing duties as a recruiter.

5. On 30 November 2001, the applicant completed a CSB election form that indicated that his service records confirmed that he was eligible to select a CSB. In this signed document, he also elected to receive a CSB in a one time
lump-sum payment upon his attaining 15 years of active duty service, and confirmation of his eligibility by the appropriate Army officials.

6. In an undated letter from the Deputy Chief of Staff, G-1, which was signed by Chief, Compensation and Entitlements Division, the applicant was informed that he and a small group of service members were erroneously paid a CSB for which he was not eligible, which thereby created a debt to the United States Government. The memorandum indicated that those soldiers who erroneously received the CSB did not initially enter military service on or after 1 August 1986; therefore under the law, they are not eligible to elect for the bonus or for participation in the REDUX that accompanied the CSB.

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7. The G-1 letter also stated that the Office of the Under Secretary Of Defense (Personnel & Readiness) requested that the DFAS suspend pending collections so that it could review this matter. However, after careful consideration it was decided that DFAS should resume normal collection actions for all erroneous CSB payments on 15 January 2003. The applicant was provided the following options if he thought his case deserved special consideration: appeal the validity of the debt; request remission and cancellation of the debt; request waiver of the debt; and apply to the Army Board for Correction of Military Records.

8. In an undated DFAS memorandum, the applicant was notified that based on a review of his account, he was erroneously paid a CSB and as a result was indebted to the Government in the amount of $30,000.00. He acknowledged receipt of the pending debt collection and elected the option to protest the collection of debt by submitting a written statement outlining the reasons why the debt should not be collected.

9. The applicant completed a statement in which he commented that he opted to take a CSB referred to as REDUX that was offered to enlisted soldiers who have an initial entry date of on or after 1 August 1986. He understood that if he accepted and the CSB was approved by the appropriate authority, he would receive the $30,000.00 (less taxes) on the 15^th anniversary of his initial enlistment. In exchange, he would incur a 10 percent reduction in his retired pay.

10. The applicant further stated that he truly believed that he was eligible for this bonus, as did the chief of the retirement section and his battalion commander who certified his request for the bonus. He stated that the Chief of the Defense Military Pay Office at Fort Knox, Kentucky has now informed him that he did not qualify for the bonus, and that he had to elect a method of repayment or initiate a protest of the debt. He states that his bonus was processed through at least two separate finance institutions and his request and eligibility for the CSB, which was prepared by a retirement official, was verified. He states that if a soldier cannot rely on the professionalism of a specialist in a specific area of responsibility, who can he trust. He now feels he is being penalized for a mistake that was totally out of his hands and he and his family have now been placed in an extremely difficult situation.

11. On 18 April 2002, the applicant submitted a request for Remission or Cancellation of Indebtedness to the US Army Personnel Command (PERSCOM). In a 29 July 2002 memorandum, the PERSCOM Chief, Special Actions notified the applicant that his request for remission or cancellation of indebtedness was disapproved for the total amount of his original debt to the government of
$30,000.00.


12. In connection with the processing of this case, an advisory opinion was obtained from Department of the Army (DA), Recruiting Policy Branch,
Office of the Deputy Chief of Staff, G-1. The G-1 recommends that administrative relief be granted in this case because the debts appear to have been incurred as a result of administrative oversights by military separation personnel and were not the fault of the applicant. The applicant was provided a copy of this G-1 opinion and concurred with its contents on 10 October 2003.

13. Department of Defense Financial Regulation provides, in pertinent part, that the DIEMS date determines which retired pay formula(s) will be used. It is not used for any other purpose (for example, it is not used in the retired pay computation). In this, the DIEMS date is the date the soldier enlisted in the DEP, not the date the soldier came on active duty. Paragraph 10101t states that for a Regular Component, time spent in the DEP is creditable only if the member entered the DEP prior to 1 January 1985.

14. In accordance with the DA, G-1 Retirement Services Homepage, a DIEMS date is the earliest date of enlistment, induction, or appointment in a regular or reserve component of a uniformed service as a commissioned officer, warrant officer, or enlisted member. Public Law 106-65 moved soldiers with DIEMS dates on or after 1 Aug 86 from the REDUX formula to the High-3 formula. However, soldiers in this group who are eligible for retention to 20 years can now elect to use REDUX and receive a $30,000 CSB in their 15th year (called a CSB/REDUX election). If they accept the $30,000 CSB, they must agree to serve a total of 20 years of active duty.

CONCLUSIONS:

1. The Board noted the applicant’s contention that he was erroneously paid the CSB due to improper advice through no fault of his own and that his DIEMS date should be changed to 1 August 1986 or later to allow him to remain eligible for the CSB, and finds this claim has merit.

2. By law and regulation, soldiers who entered the Army on or after 1 August 1986 are eligible to elect CSB under the REDUX program. The evidence of record confirms that the applicant believed and had been informed by a personnel retirement officials that he was eligible for a CSB bonus and participation in the REDUX retirement program at the time he completed the
DD Form 2839 CSB election form. Thus, the Board finds the applicant accepted the CSB and participation in the REDUX program in good faith and his ultimate indebtedness was incurred through no fault of his own.

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3. The Board is convinced by the facts and circumstances in this case that it would serve the interest of justice and equity to grant the requested relief. Thus the Board concludes that it would be appropriate to void the applicant’s enlistment in the DEP on 4 April 1986, correct his DIEMS date to 14 August 1986, the date he entered active duty in the RA, and to reimburse him any portion of the CSB debt that may have already been collected.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

         a. showing that the 4 April 1986 DEP enlistment of the individual concerned is null and void;

         b. showing that he initially entered into the military on 14 August 1986, and adjusting his DIEMS date accordingly;

         c. showing that he was fully eligible for the CSB he received and participation in the REDUX retirement program based upon his adjusted DIEMS date; and

d. reimbursing him for any portion of the CSB that may have already been collected as a debt to the government.

BOARD VOTE:

FE___ __GW___ __AU __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Fred N. Eichorn
                  CHAIRPERSON

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INDEX

CASE ID	AR2003083653
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	136.0600
2.
3.
4.
5.
6.