IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140021727 


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 correction of his military records by showing that his notice of indebtedness in the amount of $13,667.59 is cancelled. 

2.  The applicant states, in effect, that the subject debt resulted from payment of save pay when he converted from his commissioned officer grade to warrant officer grade that was granted in a "2005 Congressional Finding."  In 2009, he was promoted from chief warrant officer two (CW2) to chief warrant officer three (CW3).  He noted that his save pay did not adjust on the first leave and earnings statement (LES) after his promotion.  He did a pay inquiry that resulted in the debt notification.  Enclosure 9 is the resultant 2010 Congressional Finding on the original 2005 Congressional Finding stating the debt amount and reason.  

2.  In June 2014, the U.S. Army Human Resources Command (HRC) reviewed the debt which totaled $88,824.37.  HRC cancelled $71,156.78 of the debt but left $13,667.59 still due.  This request is for remission or cancellation of this remaining indebtedness.  The 26 April 2010 Congressional Finding (Enclosure 9) shows the original save pay amount as $80,964.69.  Defense Finance and Accounting Service (DFAS) found after a records review that all save pay that he was paid since his 2 June 2004 conversion to warrant officer totaled only $80,964.69.  This amount also included both his hardship duty pay for Korea Area I and Area II and his assignment incentive pay (AIP) which was also for Korea.  (Enclosure 2 (175th Finance, Eighth US Army, G1 explains save pay entitlements while stationed in Korea.) 

3.  The new amount of $88,824.37 became known in February 2011 and was published on his LES.  The "Wainwright DMPO Chief" could not explain the new amount and told him not to worry about the amount unless relief did not occur.  As of 12 June 2014, partial relief has occurred but it is now time to fix the remaining undocumented amount.  The correct billing is listed on Enclosure 1 which is a line by line accounting by him of all save pay he has received since the beginning in 2004.

4.  The 22 April 2010 DFAS response to the second Congressional Inquiry stated that he should use a DD Form 2789 (Waiver/Remission of Indebtedness Application).  He used this DOD/DFAS level process until 2013 when he was actually able to talk to the case worker who was processing his request.  His case has languished for several years.  The case worker asked him why he was not using a DA Form 3508 (Remission/Cancellation) to process his case and suggested that he would get a much faster response with the Army process than with the DFAS remission/waiver process.  After his permanent change of station (PCS) move to his current duty assignment, he submitted the DA Form 3508 in December 2013/January 2014.  An HRC final determination was made in June 2014.  HRC stated that the remaining amount must be addressed via the Army Board for Correction of Military Records.

5.  The applicant provides copies of:

* A DA Form 31 (Request and Authority for Leave) for the period                11 - 24 June 2004
* A DA Form 4187 (Personnel Action) for Assignment Incentive Pay (AIP) dated 21 June 2005
* A letter from DFAS to the applicant's Congressman, dated 18 November 2005
* "DJMS" LES Online Inquiry System, for the period 1-31 October 2005      (4 pages)
* A letter from the applicant's Congressman, dated 8 December 2005
* A DA Form 31 for the period 26 September 2006 to 5 January 2007
* A letter from DFAS to the applicant's Senator, dated 22 April 2010
* DFAS Form 702 (DFAS LES) for the period 1-31 December 2010
* DFAS Form 702 for the period 1-31 January 2011
* A letter from Chief, Operations Management Division, HRC, to director, Defense Military Pay Office, dated 12 June 2014
* A table of payments and dates for Save Pay, dated 16 June 2014
* Pay and Entitlements (2 pages), undated
* A Memorandum for Record, Officer in Charge, Department of Military Science, University of Nevada, dated 4 December 2014
* A Memorandum for Record, Professor of Military Science, Department of Military Science, University of Nevada, dated 4 December 2014
* A DA Form 2823 (Sworn Statement) from the applicant, dated                    4 December 2014

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted Army National Guard service, on 4 August 1995 the applicant accepted an appointment as a Reserve commissioned officer of the Army in the rank of second lieutenant (2LT), as an aviator and entered extended active duty.  He was subsequently promoted to first lieutenant (1LT) effective 24 September 1997, and to captain (CPT) effective 30 September 1999.  On 1 June 2004, he was separated to accept another appointment.

2.  On 2 June 2004, the applicant was appointed as a warrant officer one (WO1), Reserve of the Army, as an aviator.

3.  The applicant provides a DA Form 31 for the period 11 to 24 June 2004 wherein he requested 14 days leave in conjunction with a permanent change of station.

4.  The applicant provides a DA Form 4187 date stamped 21 June 2005 wherein he requested a 1-year extension of assignment incentive pay (AIP).  The request was signed by the battalion commander and approved by the Warrant Officer Career Manager.

5.  The applicant provides a copy of a DJMS LES Online Inquiry System, for the period 1-31 October 2005 showing in the Entitlement column an entry for save pay in the amount of $7,216.43.  Page 3 of this document shows that save pay was changed on 1 January 2005, stopped on 8 June 2005, and started on 9 June 2005.

6.  On 11 November 2005, the applicant was appointed a chief warrant officer two (CW2) in the Regular Army, as an aviator.  He was subsequently promoted to chief warrant officer three (CW3) on 1 February 2009, as an aviator.

7.  In a letter dated 18 November 2005, as provided by the applicant, the Director, Military and Civilian Pay Services, DFAS, informed the applicant's Congressional Representative that they had reviewed the applicant's military pay entitlements and determined the following:

	a.  his leave balance had been dropped to 9.5 days erroneously and that the balance was restored to 50 days;
	b.  his pay entitlements to include save pay, basic allowance for housing and hazardous duty pay were adjusted;

	c.  his aviation continuation pay (ACP) was paid in the amount of $12,000.00; and

	d.  he was given a point of contact for further information.

8.  In a letter dated 8 December 2005, the applicant's Congressional Representative provided the applicant a copy of the correspondence discussed in paragraph 8 above.

9.  The applicant provides a DA Form 31 for the period 26 September 2006 to 
5 January 2007 wherein he requested 101 days of leave in conjunction with a permanent change of station with temporary duty en route.  The form shows that his request was approved and that he returned to duty on 3 January 2007.

10.  In a letter from DFAS to the applicant's Senator, dated 22 April 2010, the Deputy Director, Operations, informed the Senator that information that had been previously provided concerning the applicant's save pay entitlement was incorrect.  Upon further review, DFAS determined that the applicant had a valid debt of $80,964.69.  The error in his pay was not discovered until March 2009.  When the applicant converted from the rank of a Regular Army CPT to a chief warrant officer, he was not entitled to save pay.  The entitlement is for an enlisted Soldier who accepts an appointment as an officer, or for a warrant officer who accepts an appointment as a commissioned officer.  According to Title 37, U.S. Code, section 907(a)(b) there is no provision for save pay when converting from a commissioned officer to a warrant officer.  The applicant converted to CW2 on 2 June 2004.  The letter provided a point of contact for the applicant should he still believe an injustice had occurred.

11.  The applicant provides a DFAS Form 702 for the period 1-31 December 2010 showing in the Entitlements column an advance debt of $88,824.37 and in the Deductions column a debt deduction of $80,964.69.  This implies that the remaining debt equaled $7,859.68.

12.  The applicant provides a DFAS Form 702 for the period 1-31 January 2011 showing no remaining debt in the Entitlements column and no debt payment in the deductions column.  The remarks section shows the following entry: "Total indebtedness $80,964.69.

13.  Effective 30 March 2011, the applicant was assigned to the standby Reserve (Inactive list) as a CW3.
14.  On 1 November 2012, the applicant was promoted to major (MAJ) as an aviator and was subsequently assigned to the Standby Reserve (Inactive list).

15.  On 20 September 2013, the Chief, Incentive Pay Branch, HRC notified the applicant by memorandum informing him that an audit of his total operational flying duty credit (TOFDC) was conducted in conjunction with his meeting the  18-year gate.  The purpose of this audit was to ensure that the Officer Master File accurately reflected his TOFDC and that he was still entitled to receive continuous aviation career incentive pay (ACIP).

16.  On 12 June 2014, the Chief, Operations Management Division, HRC, informed the Director, Defense Military Pay Office (DMPO) in a memorandum that the applicant's request for remission or cancellation of indebtedness in the amount of $88,824.37 had been reviewed.  It was partially approved in the amount of $71,156.78.  The review had determined that no grounds exist to remit or cancel the remaining portion based on hardship and/or injustice.  The DMPO was asked to advise the applicant to contact his local finance office to arrange a proration of the remaining balance (approximately $17,667.59).

17.  In an information sheet dated 16 June 2014, the applicant provides a breakdown of all save pay received from 31 July 2004 through 28 February 2009.  His calculations show:

* Total of all types of save pay:                          $83,014.69
* Minus Korea HDP/AIP save pay:                         6,986.66
* Actual save pay debt:                                        76,028.03
* Minus debt recoupment in 2013:                         4,000.00
* Minus remission/cancellation in 2014:               71,156.78
* Remaining save pay debt:                                       871.25

18.  The applicant provides a copy of an information sheet from the Eighth U.S. Army G1 (Personnel Officer) concerning Pay and Entitlements.  Page 2 of this document states that Save pay previously known as hardship duty pay - location (HDP-L) is paid monthly to all Soldiers regardless of rank and is based on location.  Areas II, III, and IV is $50.00.  Area I is $100.00.  The amount for Soldiers stationed in Yongin or Pohang is $150.00.

19.  In a memorandum for record, dated 4 December 2014, the Officer-in-Charge, Department of Military Science, University of Las Vegas, NV, has provided comments supporting the applicant's request for further debt relief.  The author contends that the amount of debt was unexplainably and arbitrarily increased from $80,964.69 to $88,824.37.  He further contends that the applicant has acted in good faith.  He was the one who submitted a pay inquiry in 2009 when he discovered his save pay did not adjust correctly when he was promoted to CW3.

20.  In a memorandum for record, dated 4 December 2014, the Professor of Military Science, University of Las Vegas, NV, has provided comments supporting the applicant's request for further debt relief.  He argues that $13,667.59 of the debt is shown to be attributed to Korea hazardous duty pay, Korea Assignment Incentive pay, and a 2011 debt increase that was not attributable to save pay or any other payment.  He also argues that the 2005 Congressional Inquiry by the applicant and the subsequent official response by DFAS have not provided any reason to believe he has not acted in good faith.  He states the applicant did not know and could not have known of the error.  He states the November 2005 congressional finding determined the save pay payment was correct and authorized.  He contends that the debt increase from $80,964.68 to $88,824.37 was arbitrary and not substantiated by any documentation.

21.  The Department of Defense Financial Pay Manual, paragraph 010303 (Saved Pay), subparagraph 010303a, states an enlisted/warrant officer member who accepts an appointment as an officer will, following appointment, be paid the greater of:

     a.  An enlisted member, the pay and allowances to which such member would be entitled if the member had remained in the last enlisted grade held before appointment as an officer and continued to receive increases in pay and allowances authorized for that grade or

     b.  The pay and allowances to which the member thereafter becomes entitled as an officer; or.

     c.  A warrant officer, who accepts an appointment as a commissioned officer will, following appointment, be paid the greater of the pay and allowances to which the member thereafter becomes entitled as a commissioned officer, or

     d.  The pay and allowances to which such member would be entitled if the member had remained in the last warrant officer grade held before appointment as a commissioned officer and continued to receive increases in pay and allowances authorized for that grade, or
 
     e.  In the case of an officer who was formerly an enlisted member, the pay and allowances to which entitled, under subparagraph 010303.A.4.c, before appointment as an officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by showing that his notice of indebtedness in the amount of $13,667.59 is cancelled.

2.  The available evidence shows that the applicant converted from a commissioned officer grade to a warrant officer grade in 2004.  As a result he was granted save pay when in fact he should not have been granted save pay.  Subsequently, when he was promoted to CW3 in 2009 he inquired about his save pay because it did not change as he expected.  The result was a determination that he was not eligible for save pay and he received the subject notification of debt.

3.  In June 2014, HRC reviewed the applicant's request for remission of debt in the amount of $88,824.37.  HRC partially approved the request in the amount of $71,156.78.  HRC determined there were no grounds to remit or cancel the remaining portion based on hardship and/or injustice.  The applicant was to be instructed to contact his local finance office to arrange for a proration of the remaining balance ($17,667.59 less any payments already processed).

4.  The applicant has provided his calculations concerning this debt wherein he shows he was paid a total of $83,014.69 in save pay.  After deducting those payments that were authorized and the $4,000.00 already recouped, he shows his remaining debt as only $871.25.  However, he did not provide adequate official documentation to show the accuracy of his calculations. 

5.  The applicant has not provided sufficient argument or documentation to overcome the determination by HRC that there are no grounds to remit or cancel the remaining portion based on hardship and/or injustice.

6.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.



      _______ _   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)                                         AR20140021727





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ABCMR Record of Proceedings (cont)                                         AR20140021727



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