RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          8 September 2005
      DOCKET NUMBER:  AR20040011520


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry J. Olson                |     |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 remission/cancellation of her debt to the
government.

2.  The applicant states that she was paid over $500.00 per month under the
Temporary Disability Retired List (TDRL) and was subsequently notified that
she was not entitled to those payments.  She goes on to state that a debt
has been established and her income tax returns are still being withheld,
yet she has never been told why she was not authorized the TDRL payments.

3.  The applicant provides no additional documentation with her
application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s debt be forgiven.

2.  Counsel states, in effect, that given the diagnoses and medical
condition for which she was discharged, she may not have been cognizant of
or of sufficient knowledge to understand her entitlement to monetary
benefits.

3.  Counsel provides no additional documents to support the applicant’s
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 7 August 1995.  The application submitted in this case is dated
14 December 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  She was born on 3 November 1965 and enlisted in Montgomery, Alabama, on
4 January 1995 for a period of 3 years and training as a correctional
specialist.  At the time of her enlistment she was married with two
children.  She was transferred to Fort McClellan, Alabama, to undergo her
one-station unit training (OSUT).
4.  On 21 February 1995, she was admitted to the Dwight D. Eisenhower Army
Medical Center at Fort Gordon, Georgia, where she was diagnosed with Axis I
– Schizophrenia, chronic, undifferentiated type, with an acute exacerbation
with a history of two previous psychotic episodes with hospitalizations and
reemergence of symptoms of prominent auditory and visual hallucinations,
delusions, ideas of reference, disorganization of speech, flattened effect,
marked global dysfunction in her work and social relations; external
precipitating stress: minimal, routine military duties; pre-morbid
personality and predisposition: no predisposition; degree of impairment for
military duty: marked; degree of impairment for social and industrial
adaptability: definite; treated and improved; line of duty: no; existed
prior to service: yes; Service aggravated: no.  At the time of her
evaluation, she indicated that her husband was staying with his mother and
her two children were staying with her brother.  She indicated that she
joined the Army to pursue a career.

5.  The applicant underwent a Medical Evaluation Board (MEB) on 13 April
1995 and the MEB referred her to a Physical Evaluation Board (PEB).

6.  On 4 May 1995, an informal PEB was conducted at Fort Sam Houston,
Texas, which opined that she should be separated from the service with no
disability benefits, due to a condition that existed prior to service
(EPTS).  The applicant did not concur with the findings of the PEB and
submitted a statement in her own behalf in which she asserted that she had
been physically abused by her drill sergeant and believed that it had a lot
to do with her situation. She requested that she be afforded representation
by counsel before a formal PEB.

7.  A formal PEB was conducted at Fort Sam Houston, Texas, on 2 June 1995,
with the applicant being represented by counsel.  That board made the same
findings and recommendations as the informal PEB.  The applicant did not
concur with the findings of the PEB and did not submit a statement in her
own behalf.

8.  The appropriate authority approved the findings and recommendation of
the formal PEB on 8 June 1995.

9.  On 7 August 1995, the applicant was discharged under the provisions of
Army Regulation 635-40, paragraph 4-24B (4), for a disability that existed
prior to service as determined by a PEB.  She had served 7 months and 4
days of active service and was not entitled to any disability separation
pay.

10.  A review of the available records fails to show any indication that
she was ever placed on the TDRL, was ever informed that she was entitled to
be placed on the TDRL or that she received payments for being on the TDRL.
The available records are also void of any information related to
unauthorized payments and the applicant has not provided any evidence of a
debt or evidence to show what efforts she has made to resolve the debt with
the Defense Finance and Accounting Service (DFAS).

11.  In the processing of this case, a staff member of the Board contacted
DFAS officials telephonically to ascertain the amount and the basis for any
debt the applicant might have incurred.  Officials at the DFAS indicate
that the applicant has a debt to the government in the amount of $10,507.00
due primarily because her pay and allowances were not properly stopped
until mid-January 1996 and because she had a debt with the Army Air Force
Exchange System (AAFES).  Her debt is listed as overpayment of final pay
and allowances and an established debt with AAFES.

12.  Army Regulation 600-4 serves as the authority for the remission or
cancellation of indebtedness for enlisted members.  It states, in pertinent
part, that the objective of remission or cancellation is to remit or cancel
debts that are considered to be unjust and that indebtedness may not be
cancelled or remitted when the funds obtained were converted to own use
through fraud, larceny, embezzlement, or other unlawful means.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has provided no evidence to support her
contentions that she received disability payments for being on the TDRL,
information obtained from the DFAS indicates that she was erroneously paid
her pay and allowances through mid - January 1996 before it was discovered
that she had been discharged in August 1995 and was no longer entitled to
pay and allowances.

2.  Additionally, it was also discovered that she had a debt to the AAFES
for purchases made and she had not satisfied that debt prior to her
discharge.

3.  Accordingly, once the error was discovered it was determined that she
had an overpayment of pay and allowances from August 1995 until January
1996 to which she was not entitled to receive and that she had not
satisfied her debt with the AAFES.  Therefore, a debt was established at
the DFAS and collection efforts were initiated.
4.  While it is unfortunate that she incurred this debt, there is no
evidence in the available records to show that she was ever entitled to the
monies she received after her discharge and there is no evidence to show
that she was ever led to understand that she had an entitlement to pay
after her discharge.

5.  There is also no evidence to show that she attempted to contact
officials to stop her pay after her discharge, when her pay continued to be
deposited in her account.

6.  Additionally, her account (debt) with the AAFES was a debt that she
incurred and it was her responsibility to satisfy that debt at the time of
her discharge and she failed to do so.

7.  Therefore, lacking evidence to show that she attempted to stop the
unauthorized payment of pay and allowances she was receiving or that she
attempted to satisfy her debt with the AAFES, there appears to be no basis
to forgive a debt for monies that she was not entitled to receive and for a
debt that she established with the AAFES.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 August 1995; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 August 1998.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__WDP___  __JTM___  __LJO___  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                  William D. Powers
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011520                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050908                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |291/SEV PAY                             |
|1.128.0800              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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