2. The applicant requests remission of his debt for the overpayment of basic allowance for quarters (BAQ) in the amount of $3,514.22.
3. The applicant states that he informed the Defense Finance and Accounting Service (DFAS) officials of every change in his status and was advised that he was entitled to saved pay while being married to another service member and while residing in government quarters. He goes on to state that he was initially called by the servicing DFAS office to raise his BAQ payments for child support. However, after explaining that his child support payments were garnished from his pay by the state of Florida in an amount greater than he was receiving for BAQ, he was informed that no change was necessary. He was subsequently notified by another DFAS official in 1992 that his BAQ had been stopped because he had failed to raise the amount of his child support payments. After explaining to the official that he had previously been informed that it was unnecessary to make a change, he was informed that he would have to forfeit 3 months of his BAQ entitlements regardless of the reasons for his not making the change. He further states that he then explained that he was getting married to another service member who was residing in government quarters and was informed that he would be entitled to save pay under those circumstances and that no further action would be required on his part. He continues by stating that it was not until he was departing the service at his expiration of term of service (ETS) that he was informed that not only would he not get any pay at the time of separation, but he would still owe the government after his separation. He continues by stating that he used the money for which it was intended and does not feel that it is just to impose such a financial hardship on him and his family due to mistakes on the part of DFAS officials.
4. The applicants military records show that the applicant enlisted on 5 April 1988 and remained on active duty until he was honorably discharged on his scheduled ETS in the pay grade of E-5, on 26 November 1994.
5. At the time of the applicants separation from the service (18 November 1994), the servicing DFAS office prepared a Pay Adjustment Authorization (DD Form 139) indicating that the applicant was erroneously receiving saved pay or BAQ difference since 13 June 1992 and that he was indebted to the Government in the amount of $3,514.22.
6. Records obtained from the local DFAS office by a staff member of the Board indicate that the applicant is currently indebted in the amount of $1,887.38 and that his pay was being garnished for child support in the amount of $308.00 per month. It appears that he received an average of $121.17 per month of saved pay that he should not have received.
7. In the processing of this case an advisory opinion was obtained from the DFAS. It opined, in effect, that the applicants case had merit for approval or disapproval and that Board action would be required if approval was deemed appropriate.
8. The Department of Defense Military Pay and Allowances Entitlements Manual sets forth statutory provisions for entitlements, deductions, and collections and established Department of Defense policy on pay and allowances of military personnel. Volume 7, part A, paragraph 30236, outlines the general provisions for support of dependents. It states, in pertinent part, that the amount of support will be at least the difference between the with dependents rate of BAQ and the without dependent rate of BAQ, and that action will be taken to recoup BAQ from the member for periods adequate support has not been provided.
9. Army Regulation 600-4 serves as the authority for the remission or cancellation of indebtedness for enlisted members. It states, in pertinent part, that the objective of remission or cancellation is to remit or cancel debts that are considered to be unjust and that indebtedness may not be remitted or cancelled when the funds obtained were converted to own use through fraud, larceny, embezzelment, or other unlawful means.
CONCLUSIONS:
1. Although the applicant was receiving saved pay to which he was not entitled, the evidence indicates that the applicant relied to his detriment on the advice of Department officials who were in positions to advise him of his entitlements and failed to properly do so.
2. It appears that the applicant did everything that could reasonably be expected of a soldier in his situation. However, as a result of the applicant following the flawed advice of Department officials at the time, the applicant has incurred a debt that he otherwise would have been able to avoid had he been properly advised.
3. Inasmuch as the applicant continued to provide support for his dependent, which was the intended purpose of the BAQ, and since there is no evidence that the funds were converted to his own use through fraud, larceny, embezzlement, or other unlawful means, it would be appropriate to remit the debt.
4. In view of the foregoing, it would be appropriate to correct the applicants records as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by remitting the $3,514.22 of the debt owed by the individual concerned incurred during the period 13 June 1992 through 26 November 1994.
2. That any portion of the remitted amount that has already been collected be repaid to him.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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