RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            17 August 2004
      DOCKET NUMBER:   AR2004102870


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Mr. Robert J. Osborn              |     |Member               |
|     |Ms. Eloise C. 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 that the portion of his debt that has been
collected from him be refunded.

2.  The applicant states that the debt was the result of Government error.
When he reenlisted after a break in service, he was told that his pay entry
basic date (PEBD) did not have to be changed.  It was not discovered until
several years later that it should have been changed.  The error resulted
in a debt.  Before the debt could be remitted or cancelled, $648.00 of it
had been collected.

3.  The applicant provides two DA Forms 1506 (Statement of Service – for
Computation of Length of Service for Pay Purposes); his Enlisted Record
Brief; his DA Form 2-1 (Personnel Qualification Record); his DA Form 3508
(Application for Remission or Cancellation of Indebtedness); a leave and
earnings statement for the period 1 through 31 August 2003; a DD Form
  139 (Pay Adjustment Authorization); a notification of indebtedness dated
          12 August 2003; and the applicant's notice of protest of the
collection of the  debt dated August 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior active duty in the Regular Army from 10 October
1989 through 13 June 1997.  He reenlisted in the Regular Army on 28 June
1999.  Apparently when he reenlisted, and up through the preparation of a
DA Form 1506 dated 30 April 2003, his PEBD was determined to be 10 October
1989.  This DD Form 1506 dated 30 April 2003 indicated that he served in
the U. S. Army Reserve during the period 14 June 1997 through 27 June 1999.

2.  A DA Form 1506 dated 13 May 2003 determined the applicant's PEBD to be
24 October 1991 and indicated that he had a complete break in service
during the period 14 June 1997 through 27 June 1999.

3.  Item 35 (Current and Previous Assignments) of the applicant's DA Form 2-
1 indicates he served four months in the U. S. Army Reserve from June
through October 1997.

4.  On 5 August 2003, the applicant's servicing finance office determined
he was overpaid and owed a debt of $2,737.12.  Of that amount, $648.00 was
collected in June and July 2003.  He was notified of the remaining debt.

5.  On 12 August 2003, the applicant requested remission or cancellation of
his debt.  On 9 September 2003, his commander recommended approval of his
request.  His commander noted that the applicant had no financial issues
yet, but the additional debt could greatly impact his ability to pay his
bills and provide support for his family.

6.  On 13 November 2003, the U. S. Army Human Resources Command approved
remission or cancellation of $2,089.12 of the applicant's debt.  Since
$648.00 of the indebtedness had been collected prior to the commander's
signature on the application, it could not be considered for remission or
cancellation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant took immediate action to satisfy
the requirement for submitting an application for remission or cancellation
of his indebtedness when his indebtedness first became known in August
2003.  However, the Army had collected a portion of the debt, in the amount
of $648.00, prior to his submission of his application.  Therefore, that
amount of the debt could not be remitted or cancelled by the approving
authority.

2.  The Army is not liable for the erroneous actions of its officers,
agents, or employees, even though committed in the performance of their
duties.  While the Board could nevertheless determine that it would be in
the interest of justice and equity to grant the relief requested, the
circumstances do not seem to warrant such in this case.  The applicant
received the benefit of the increased pay for a number of years, the major
portion of the debt was approved for remission or cancellation, and he has
not shown that repayment of the collected portion is required to relieve a
financial hardship suffered at the time it was collected.  To grant such
relief would be an unjust enrichment.

3.  It is noted that the applicant's DA Form 2-1 indicates he served four
months of service not on active duty.  If that is true, it appears his PEBD
would have to be adjusted slightly in his favor.  The amount of his debt
might be affected.

4.  Evidence shows that the applicant’s records might contain an
administrative error which does not require action by the Board.
Therefore, administrative correction/review of the applicant's records will
be accomplished by the Case Management Support Division (CMSD), St. Louis,
Missouri, as outlined by the Board in paragraph 2 of the BOARD
DETERMINATION/RECOMMENDATION section below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sp____  __rjo___  ___ecp__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The CMSD, St. Louis, Missouri will be directed to review the Reserve
records of the individual concerned and determine if he served in the U. S.
Army Reserve not on active duty for any period of time but specifically for
the period June through October 1997.  If so, the Defense Finance and
Accounting Service and any other appropriate agencies will be notified that
his PEBD needs to be recomputed accordingly.  The individual concerned will
be notified whether or not the review revealed any service that could
affect his PEBD.




            __Shirley Powell______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102870                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040817                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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