RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 May 2007
      DOCKET NUMBER:  AR20060015772


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 monies previously collected from his
pay which were applied to his indebtedness as a result of a pay entry basic
date (PEBD) correction be waived and returned.

2.  The applicant states that he was not aware that his breaks in service
had not been previously considered or adjusted by unit personnel services
staff.  Upon realizing there was a problem, he initiated a PEBD inquiry.
He was not made aware that the repayment process would result in his
receiving about three checks that were less than ten percent of his gross
wages.  During that period, his family was near destitution and he was left
without a means to provide for his family.

3.  The applicant provides his waiver of indebtedness packet; four leave
and earnings statements (LESs); a USARC (U. S. Army Reserve Command) Form
22-R (Adjustment Certification Worksheet); a USAR Personnel/Pay Mismatch
Report; a DD Form 214 (Certificate of Release or Discharge from Active
Duty) for the period ending 13 September 1984; discharge orders, dated 29
April 1986; an enlistment contract, dated 7 May 1987; a DA Form 4836 (Oath
of Extension of Enlistment or Reenlistment); discharge orders, dated 8 June
1994; an enlistment contract, dated 27 February 1996; and a DA Form 2-1
(Personnel Qualification Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR (Delayed Entry Program) on 29 March
1978.  He enlisted in the Regular Army on 20 June 1978.  He was honorably
discharged on 13 September 1984 due to sole parenthood.

2.  On 22 April 1985, after a break in service of 7 months and 8 days, the
applicant enlisted in the USAR.  He was honorably discharged on 29 April
1986.

3.  On 7 May 1987, after a break in service of 1 year and 7 days, the
applicant enlisted in the USAR.  He was honorably discharged on 8 June
1994.

4.  On 27 February 1996, after a break in service of 1 year, 8 months, and
       18 days, the applicant enlisted in the USAR.  With this last break
in service, his total breaks in service added up to a period of 3 years, 4
months, and 3 days without his having a military status.

5.  On 30 September 2003, the applicant was assigned as the First Sergeant
of Headquarters and Headquarters Company (HHC), 85th Division.  He was
promoted to Master Sergeant, E-8 on 1 December 2003.  He entered active
duty on 23 January 2004 as the First Sergeant of HHC, 85th Division.

6.  In a sworn statement from the HHC, 85th Division unit administrator,
the administrator stated the applicant informed him in January 2006 that he
(the applicant) had just had a retirement year ending date change that
caused his PEBD to change.  The unit administrator examined the applicant’s
retirement point sheet and inquired about his breaks in service.  He
pointed out to the applicant that the breaks in service were the reasons he
had a PEBD change.  He stated the applicant had no knowledge of the effects
that the breaks in service could have on his PEBD and was genuinely
surprised about the change. The administrator stated most Soldiers outside
the realm of personnel or pay administration have little or no knowledge of
how these dates are affected by various factors and it is the duty of the
qualified personnel to identify the discrepancy, advise the Soldier, and
initiate those actions.

7.  On 11 April 2006, the applicant’s unit made a PEBD change on him,
changing his PEBD from 20 September 1978 to 22 October 1981.

8.  The applicant’s DA Form 3508-R (Application for Remission or
Cancellation of Indebtedness) indicates he was informed on 31 July 2006 of
a PEBD debt in the amount of $6,717.85.

9.  The applicant’s LES dated 15 August 2006 shows he had total
entitlements of $3,495.53 with a deduction of $2,874.94 for a debt payment.
 His LES for the period covered 1 September 2006 shows he had total
entitlements of $3,343.53 with a deduction of $2,796.94 for a debt payment.


10.  A Soldier’s pay date (i. e., PEBD) and years of service are shown on
the top line of his or her LES.  On the LESs provided by the applicant, his
pay date is shown as 25 June 1981 and his years of service as 25.  His LESs
prior to correction of his PEBD most likely showed his pay date as 20
September 1978 with corresponding years of service depending on the date of
the LES.

11.  On 9 September 2006, the applicant requested remission or cancellation
of a PEBD debt in the amount of $6,717.85.

12.  In a 9 September 2006 letter of support, the applicant’s commander
stated that upon the applicant’s return to the USAR numerous attempts to
make the necessary correction [to his PEBD] were futile, resulting in
overpayment.  The
PEBD adjustment was finally made during a recent retirement point
correction.  The applicant had served over 18 years as a Reserve Component
Soldier, and the collection [of the debt] would cause extreme hardship on
him.

13.  The applicant’s LES dated 15 September 2006 shows he had total
entitlements of $3,349.27 with a deduction of $2,936.50 for a debt payment.


14.  On 16 October 2006, the Reserve Pay Support Branch, U. S. Army Human
Resources Command – St. Louis, MO informed the applicant that his
application for remission or cancellation of indebtedness was approved in a
partial amount of $1,043.32.  He was informed that it had been determined
there were no grounds to remit or cancel the portion of the debt that had
already been collected on the basis of injustice or hardship.

15.  On 19 January 2007, the applicant was released from active duty upon
the completion of his required active service.

16.  Army Regulation 37-104-4 (Military Pay and Allowances Policy) states,
in pertinent part, that Soldiers are responsible for reviewing their LES
and for the prompt and accurate reporting of changes in their personal
circumstances that affect their entitlement to pay, or the distribution of
their pay, to their commander and servicing finance office or defense
military pay office.

17.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness for
Enlisted Members) states, in pertinent part, that Soldiers must make sure
that their financial accounts are correct.  They must review their monthly
LES and report errors or discrepancies to the command and the finance
office or defense military pay office.  It also states that, in determining
injustice or hardship, the following factors will be considered:  the
Soldier’s awareness of policy and procedures; past or present MOS, rank,
years of service, and prior experience; the Soldier’s monthly income and
expenses; and the Soldier’s contribution to the indebtedness to the U. S.
Army by not having the situation corrected.  An additional factor to be
considered is whether there is evidence the Soldier did not know, and could
not have known, of the error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was assigned duties as a First Sergeant on 30 September
2003, and he was promoted to Master Sergeant, E-8 on 1 December 2003.

2.  The governing Army regulations clearly state that the Soldier is
responsible for reviewing his or her LES.  As a senior noncommissioned and
especially as a First Sergeant (who should be counseling his Soldiers on
their responsibility to review their LESs), the applicant should have been
aware of the need to review his LESs.

3.  The applicant knew he had several breaks in service and should have
known that his breaks in service added up to over 3 years during which he
was not in any military status.  If he had reviewed his LESs as it was his
responsibility to do he should have noticed that they showed his pay date
as sometime in 1978 instead of a more realistic pay date of sometime in
1981 (3 years after his initial entry into the military).

4.  In addition, the evidence provided by the applicant (his commander’s
          9 September 2006 letter of support) shows that the applicant was
aware of the PEBD error when he returned to the USAR (presumably meaning
his last return, in February 1996).  The commander stated numerous attempts
made to correct the error were futile, resulting in overpayment.  However,
that also means the applicant accepted the overpayment, knowing it was
erroneous, for about          10 years.

5.  On 16 October 2006, the Reserve Pay Support Branch, U. S. Army Human
Resources Command – St. Louis, MO informed the applicant that his
application for remission or cancellation of indebtedness was approved in a
partial amount of $1,043.32.  There is insufficient evidence that would
warrant granting a further reduction of that debt or a refunding of
collections already made.

6.  The applicant is advised to have his PEBD reviewed once again.  His
unit made a PEBD change on him, changing his PEBD to 22 October 1981.
However, the LESs he provided show his PEBD as 25 June 1981.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ym____  __lmd___  __gjp___  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.




                                  __Yolanda Maldonado___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015772                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070515                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |128.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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