IN THE CASE OF:	  

		BOARD DATE:	        24 September 2008

		DOCKET NUMBER:  AR20080012752 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests payment of pay and allowances for her husband, a deceased service member (SM), for the period of 4 October through 14 October 1993.

2.  The applicant states, in effect, that her husband was in a Whereabouts Unknown/Missing status from 3 October through 14 October 1993.  After his remains were recovered and moved to Dover Air Force Base, Delaware, his date of death was established as 3 October 1993.  His mid-month pay had already been deposited in their Pentagon Federal Credit Union checking account.  The Defense Finance and Accounting Office (DFAS) notified the credit union that the mid-month pay was an overpayment and requested its return.  The credit union complied and notified the applicant by a letter dated 26 October 1993.

3.  When the deceased Soldier's commander and the casualty affairs officer inquired as to why this had occurred, they were told that the FSM had not earned that pay.  The recoupment of this money caused the applicant undue financial hardship.  Being told that her husband "didn't earn" the pay was a terrible injustice.

4.  The applicant provides copies of the Report of Casualty (DD Form 1300), dated 26 October 1993; a memorandum from DFAS to the Pentagon Federal Credit Union, dated 20 October 1993; and a memorandum from the Pentagon Federal Credit Union to the applicant, dated 26 October 1993. 


CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The deceased Soldier was a staff sergeant, pay grade E-6, with approximately 15 1/2 years of active duty service.  He was a helicopter crew chief assigned to D Company, 1st Battalion, 160th Special Operations Aviation Regiment.  In October 1993, his unit was part of the United Nations peace keeping/humanitarian relief task force in Mogadishu, Somalia. 

3.  On 3 October 1993, his helicopter was shot down in an incident known in the public lexicon as "Blackhawk Down" because of the well-researched book and the subsequent movie by the same name.  

4.  Stateside awareness of the events in Mogadishu spread on 4 October 1993.  The author of Blackhawk Down relates, "Later that day notification arrived at Fort Bragg…Then there were horrible images of a dead Soldier being dragged through the streets…Wives and parents and siblings were…trying to determine who…They finally recognized (the deceased former Soldier) was one of the two crew chiefs…." 

5.  The deceased's remains were recovered and the Report of Casualty, prepared on 29 October 1993, lists his date of death as 3 October 1993. 

6.  The Pentagon Federal Credit Union letter, dated 26 October 1993, informed the applicant that DFAS had requested reimbursement of the payment of his  mid-month pay, in the amount of $1,338.24, made on 15 October 1993.  The letter stated that DFAS called their Direct Deposit department on 19 October 1993 and faxed their request on 20 October 1993.

7.  The file contains an untitled document, dated 16 November 1993, that appears to be a page from a casualty assistance center's duty officer log.  It 

describes the applicant's request concerning the mid-month pay for the period for 
which the deceased Soldier was listed as missing.  It states, "She indicated it’s the principle [of the thing] that she should be paid for the time he was in a missing status."  The following entry dated 23 November 1993 states, "A____ talked with individuals who were on the ground during the incident.  They believe [the deceased Soldier] died on 3 Oct 93." 

8.  The author of Blackhawk Down, in an on-line dialogue with his readers, described the research that went into this project stating, "Eventually my list of men who had fought that day in Mogadishu was too long for me to keep up [with]. I've interviewed about 70 now...and counting.  I also spoke with Air Force PJs down in Florida.  I interviewed brass from Gen. Colin Powell on down, and along the way accumulated lots of helpful documents...like official battle accounts, timelines, etc...and got to watch videotapes and listen to audiotapes of the battle."

9.  On 26 September 2008, the U. S. Army Human Resources Command (USAHRC), Casualty Branch, informed a Board analyst that a missing in action determination was not made in the SM’s case because his remains were found before the process for making that determination could be completed.

10.  The Department of Defense Financial Management Regulation (DODFMR), Volume 7A, chapter 34 (Pay Entitlement of Members Missing, Missing in Action, Interned, etc., and Payments to Dependents), paragraph 340301, states that a member who enters a missing status is entitled to the pay and allowances to which entitled when the missing status began or to which the member later becomes entitled.  

11.  The DODFMR, Volume 7A, chapter 34, paragraph 3404, states that allotments in effect before a member enters a missing status may be continued.  As directed by the Secretary of the Military Service concerned, allotments may be initiated, suspended, resumed, increased, decreased, or discontinued where circumstances so warrant in the interests of the missing member, the dependents, or the government.

12.  The DODFMR, Volume 7A, Table 34-1, states that if an Army member is missing; then the authority to make all determinations under the Missing Persons Act is vested with the Secretary of the Army; who has delegated to The Adjutant General, U. S. Army, the authority to make determinations of the status of 

members, of death, and of essential dates; and has delegated to the Director, DFAS – Indianapolis Center, the authority to make determinations pertaining to 
facts of dependency and to the initiation, continuance, suspension, or resumption of allotments of pay; and all determinations are conclusive in the absence of fraud or criminal intent.

13.  The DODFMR, Volume 7A, Table 34, states, in part, that when an Army member who is missing or missing in action; then the member is entitled to receive or have credited to his/her account the pay and allowances to which entitled when missing status began or to which the member becomes entitled later; with accounts maintained in DFAS; and payments continue through the date of receipt by the Military Service concerned of, in part, evidence of death of the member or date of presumption of death made by the Secretary of the Military Department concerned or Secretary’s designee.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that the SM was in a Whereabouts Unknown/Missing status from 3 October through 14 October 1993.  USAHRC’s Casualty Branch has stated that a formal determination that the SM was in a missing in action status was not made before the SM’s remains were found on  14 October 1993.

2.  The SM’s mid-month October 1993 pay had in the meantime been transmitted to his banking institution and was deposited to his account.  Although a DFAS representative indicated in a telephone conversation with a Board representative the mid-month pay had not been deposited in the account, records from that time period indicate the funds had been deposited to the account and DFAS did not request their return until after the mid-month pay date.  When DFAS learned that his date of death was determined to have been 3 October 1993, his banking institution returned his pay to DFAS at DFAS’s request.  

3.  The DODFMR, Volume 7A, chapter 34, paragraph 340301, states that a member who enters a missing status is entitled to the pay and allowances to which entitled when the missing status began or to which the member later becomes entitled.  

4.  The DODFMR, Volume 7A, Table 34-1, states that if an Army member is missing; then the authority to make all determinations under the Missing Persons Act is vested with the Secretary of the Army; who has delegated to The Adjutant General, U. S. Army, the authority to make determinations of the status of members, of death, and of essential dates; and has delegated to the Director, DFAS – Indianapolis Center, the authority to make determinations pertaining to facts of dependency and to the initiation, continuance, suspension, or resumption of allotments of pay; and all determinations are conclusive in the absence of fraud or criminal intent.

5.  The recoupment of the SM’s October 1993 mid-month pay worked a hardship on the applicant, the SM’s spouse.  In the interest of justice and compassion, it would be equitable to correct the records to show that an official determination was made that the SM was in a missing in action status; and that DFAS thereupon made a determination to continue to process the SM’s usual pay allotments with no change; and that on 26 October 1993 the appropriate authority determined the SM was no longer in a missing in action status but that his date of death was 3 October 1993.  

6.  Therefore, in accordance with the DODFMR, Volume 7A, the SM’s October 1993 mid-month pay was properly deposited in his bank account and could not be recovered.

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  showing that an official determination was made by the appropriate authority that he was in a missing in action status;

     b.  showing that DFAS thereupon made a determination to continue to process the SM’s usual pay allotments with no change (i.e., to forward his October 1993 mid-month pay to his banking institution);

     c.  showing that on 26 October 1993 the appropriate authority determined that the SM was no longer in a missing in action status but that his date of death was 3 October 1993; and
     d.  returning to the applicant the SM’s October 1993 mid-month pay that was recovered from his banking institution but is now a proper payment as a result of the above corrections.




      _________X_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080012752



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ABCMR Record of Proceedings (cont)                                         AR20080012752



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