RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 October 2005
      DOCKET NUMBER:  AR20050011746


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Conrad V. Meyer               |     |Member               |
|     |Ms. Linda M. Barker               |     |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, the remission/cancellation of his
debt to the government.

2.  The applicant states the debt he incurred for receiving Foreign
Language Pay is unjust.  He continues that why was he not informed at the
time he took the foreign language test or submitted the paperwork, that he
was not eligible to receive the special pay.

3.  The applicant provides a copy of U.S. Army Human Resources Command
memorandum, dated 22 April 2005; a copy of Defense and Accounting Service,
Defense Military Pay Office memorandum, dated 8 April 2005; a copy of
Nathan Hale Army ROTC Battalion, University of Connecticut memorandum,
dated 29 March 2005; a copy of DA Form 3508-R (Application for Remission or
Cancellation of Indebtedness); a copy of DA Form 2823 (Sworn Statement),
dated 1 April 2005; a copy of Defense and Accounting Service, Defense
Military Pay Office memorandum, dated 20 December 2004; a copy of DD Form
139 (Pay Adjustment Authorization), dated 20 December 2004; a copy of DJMS
LES Online Inquiry System; and a copy of DFAS Form 702 (Defense and
Accounting Service Military Leave and Earnings Statement) for the period
covered 1 February through 29 February 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty.

2.  The applicant submitted a copy of Defense Finance and Accounting
Service, Defense Military Pay Office memorandum, dated 20 December 2004,
which notified the applicant of his indebtedness to the U.S. Government.
This memorandum informed him that a review of his records indicated that a
debt in the amount shown on the DD Form 139 (Pay Adjustment Authorization)
is owed to the U.S. Government.

3.  The applicant submitted a copy of DD Form 139 from the Defense Military
Pay Office, Fort Knox, Kentucky addressed to the Commander, 2nd Region,
Fort Knox, Kentucky.  This form shows that the applicant was receiving
Foreign Language Pay since 15 February 2002 which is only authorized for
one year.  This form also shows that the Foreign Language Pay should have
stopped
effective 14 February 2003; therefore, the applicant owes for overpayment
of the Foreign Language Pay from 15 February 2003 through 30 November 2004.
 This form further shows that the amount of debt due to the U.S. Government
is $1,076.66.

4.  The applicant submitted an undated DA Form 3508-R (Application for
Remission or Cancellation of Indebtedness) requesting remission of debt for
the amount of $1,076.66.  This form also shows that the request is based on
injustice.

5.  The applicant submitted a Nathan Hale Army ROTC Battalion memorandum,
dated 29 March 2005 addressed to the Defense Military Pay Office.  This
memorandum shows that the Professor of Military Science [a lieutenant
colonel] strongly supports approval of the applicant's request for
remission or cancellation of the indebtedness for the amount of $1,076.67.
The Professor of Military Science stated that the following reasons should
be taken into consideration:

      a.  The applicant took the Foreign Language Proficiency test and
submitted the DA Form 4187 (Personnel Action) in good faith.


      b.  The applicant continued to receive the Foreign Language
Proficiency pay when a DA Form 4187 was submitted and processed; therefore,
he had no reason to assume the pay was not authorized.


      c.  When the applicant submitted for recertification, through his
chain of command, he continued to receive the Foreign Language Proficiency
pay which reconfirmed his assumption that he is authorized this pay.


      d.  The applicant was not informed until November 2004, that he was
not authorized Foreign Language Proficiency pay and he has done everything
to try and resolve this issue.


6.  This memorandum further indicates that the repayment of the debt will
cause an undue financial burden upon the applicant and his family.  The
memorandum concluded that approving the request for remission or
cancellation of the debt would be just and in the best interest of the
applicant and his family.





7.  The applicant submitted a DA Form 2823 (Sworn Statement), dated 1 April
2005, which he states the following:

      a.  He received the letter of indebtedness for the Foreign Language
Pay in December 2004 which stated that he was not authorized the special
pay from February 2003 through November 2004.


      b.  The applicant took the proficiency test in February 2003 and
submitted the DA Form 4187 to DFAS along with a Personnel Service Battalion
Flash Stamp for 2003; however, no orders were published.


      c.  Since he could not retest in 2004 due to his deployment to Iraq,
he spoke with his finance office and was informed to submit a DD Form 4187
through his chain of command to finance indicating that he is still
proficient in the German language.


      d.  He called the language testing center in Fort Polk and was
informed that the German language after 2003, was not authorized for
foreign language pay.


      e.  The applicant asked why he was not informed prior to taking the
test in 2003 and when he submitted the DA Form 4187 for recertification in
2004, that he was no longer eligible for foreign language pay.  He was not
provided an answer.


      f.  The applicant concludes that he did all the proper paperwork for
eligibility of this special pay and that finance should have informed him
of his ineligibility before the amount of debt got too large; therefore,
claims that this debt is an injustice.

8.  On 8 April 2005, the Defense Finance and Accounting Service, Defense
Military Pay Office transmitted the request for remission or cancellation
of indebtedness to the Commander, U.S. Human Resources Command.  This
memorandum also indicates that the applicant's debt was in a suspended
status.

9.  On 22 April 2005, the Chief, Special Actions Branch, U.S. Army Human
Resources Command notified the applicant that his application for remission
or cancellation of indebtedness was disapproved.  The applicant was also
informed if he feels an injustice was made, he should apply to the Army
Board for Correction of Military Records.

10.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness for
Enlisted Members) serves as the authority for processing applications for
remission of indebtedness.  It states, in pertinent part, that a debt to
the government may be cancelled if it is determined that, based on the
information received, an injustice or hardship, or both exist.  This
regulation also states that the soldier’s awareness of policy and
procedures will be considered as well as whether or not the soldier
inquired or consulted with proper authority and was told that the payment
was correct.  Request for cancellation or remission of indebtedness will
not be considered if there is evidence of fraud, larceny, or embezzlement
on the part of the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the debt was incurred through no fault of
his own. He also contends that he followed the proper procedures to qualify
for the foreign language pay; however, finance did not inform him of his
ineligibility until almost two years later.

2.  The evidence of record confirms the applicant was never informed of the
debt until almost two years after the fact.  Records also show that once
notified he was indebted to the government in the amount of $1,076.67, due
to unauthorized foreign language pay, he immediately attempted to resolve
this issue.  He submitted an application for remission or cancellation of
indebtedness which was denied.

3.  A 29 March 2005 memorandum prepared by the applicant’s unit commander
confirms that the applicant was not notified of the debt until nearly two
years after the fact.  The unit commander further exonerated the applicant
of any fault for the debt and verified the hardship the applicant would
face if he were required to pay the debt.  This formalized the command's
position in support of the remission or cancellation of the applicant’s
indebtedness.

4.  Based on the facts of this case, there is sufficient evidence to show
that the late notification of the debt incurred by the applicant was the
result of an oversight by the finance office.  Furthermore it is clear that
this oversight caused an undue financial hardship on the applicant and his
family.  Therefore, as a matter of equity, it would be appropriate to grant
the requested relief.





BOARD VOTE:

_CEM__  __JEV______  _LB___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

That all of the Department of the Army records related to this case be
corrected by showing that the application of the individual concerned for
remission/cancellation of indebtedness of $1,076.67, due to an overpayment
of foreign language pay, was approved for the full amount of the debt; and
by reimbursing the applicant any portion of the total debt that was
collected.





                                     __James E. Vick_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050011746                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051026                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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