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AF | BCMR | CY2006 | BC-2006-01608
Original file (BC-2006-01608.doc) Auto-classification: Denied


                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01608
            INDEX CODE:  128.10

      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  28 NOV 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

His remaining Cost of Living Allowance (COLA) debt for  the  period
15 Jul 04 to 15 Aug 05 be waived.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He applied for a waiver through the Defense Office of Hearings  and
Appeals (DOHA), dated 22 Nov 05, for a debt which  arose  from  the
COLA he received for the period of 15 Jul 04 – 15 Aug 05.

Applicant submitted a DOHA request in Sep 05 to waive  $3587.74  of
his total debt of $4771.07.  His total debt was  comprised  of  two
components: 1) overpaid deployment entitlements, 2) overpaid  COLA.
The DOHA determination was the following:

      a. Waived COLA debt for 22 Jun – 15 Jul 04.
      b. Waived Family Separation Housing (FSH) debt for  3  May  –
         15 Jun 05.
      c. Waived Hostile Fire Pay (HFP) debt for 1 Jun – 15 Jun 05.
      d. Denied COLA debt for 15 Jul 04 – 15 Aug 05.

He requests that the remaining COLA debt for the period 15 Jul 04 –
15 Aug 05 be waived.

In support of his appeal, applicant submitted  a  letter  from  his
financial analysis flight commander and a copy of his  DOHA  appeal
package and other supporting documents.

Applicant’s complete submission, with attachments, is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Applicant is currently serving in the grade of  lieutenant  colonel
with an effective date and date of rank of 1 May  01  with  a  duty
title as Commander.

Applicant was transferred from  Kadena  AB  to  Spangdahlem  AB  on
22 Jun 04.  However, due to a finance  oversight,  the  transaction
that normally transfers a pay record from one  base  to  the  other
rejected and was not corrected until  12  Aug  05.   As  a  result,
applicant was overpaid COLA from Jun  04  through  Jul  05  in  the
amount of $3587.74.

On 22 Nov  05,  the  DOHA  waived  all,  but  the  portion  of  the
applicant’s request in respect to COLA he received erroneously  for
the period 15 Jul 04 to 15 Aug 05, resulting in an  overpayment  of
$3587.74.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AF/A1DF recommended a waiver of half the COLA debt in the amount
of $1793.87.  In reviewing DOHA’s decision,  they  found  no  basis
that  would  warrant  further  waiver  of  the  applicant’s   debt.
However, they feel the government does bear some responsibility  in
the oversight since they were aware of the error and took no action
to ensure a resolution.

The HQ AF/A1DF complete evaluation is at Exhibit B.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  the  applicant
on 2 Jun 06 for review and comment within  30  days.   As  of  this
date, no response has been received by this office (Exhibit C).

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was timely filed.

3.  Insufficient  relevant   evidence   has   been   presented   to
demonstrate the existence of error or injustice.  After a  thorough
review of the evidence of record and applicant's submission, we are
not persuaded that the remaining portion of the applicant’s debt of
$3587.74 should be waived.  The Board noted  the  comments  of  Air
Force Chief, Compensation & Entitlement Policy; however we are  not
in agreement with their  recommendation.   Air  Force  members  are
provided a Leave and Earnings Statement (LES) on a  monthly  basis,
which provides them with information of their  leave  and  earnings
entitlements.  Based on information  provided  to  the  Board,  the
applicant received most of the LESs  provided  to  him  during  the
period in question (15 Jul 04  –  15  Aug  05).   Applicant’s  LESs
clearly listed his COLA location.  Therefore, we  believe  that  he
bears  some  responsibility  to  carefully  examine  his  LESs  for
accuracy and to report any errors  to  the  appropriate  officials.
The applicant failed to report the errors on his LESs in excess  of
12 months during the period in question.   Furthermore,  given  his
number of years of service, rank and office, it is our opinion that
he had a responsibility to question the COLA  location  erroneously
listed on his LESs.   In view of the above, we  conclude  that  the
applicant has not been the victim of  an  error  or  an  injustice.
Based on the foregoing and in the absence of persuasive evidence to
the contrary, we find no compelling basis to recommend granting the
relief sought in this application.  As an aside, since 10 USC  2774
authorizes the Secretary concerned to waive a claim  in  an  amount
aggregating not more than $1500, we appear to  lack  the  authority
even if we were so inclined.

___________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified  that  the  evidence  presented  did  not
demonstrate the existence of material error or injustice; that  the
application was denied without a personal appearance; and that  the
application will only be reconsidered upon the submission of  newly
discovered relevant evidence not considered with this application.

___________________________________________________________________

The following members of the Board considered AFBCMR Docket  Number
BC-2006-01608 in Executive Session  on  19  July  2006,  under  the
provisions of AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Ms. Barbara R. Murray, Member
      Mr. Reginald P. Howard, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 May 06, w/atchs.
    Exhibit B.  Letter, HQ AF/A1DF, dated 31 May 06.
    Exhibit C.  Letter, SAF/MRBR, dated 2 Jun 06.




                                   MICHAEL J. NOVEL
                                   Panel Chair

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