APPLICANT REQUESTS: That indebtedness in the amount of $11,659.42, the result of overpayment of bachelor allowance for quarters (BAQ) and variable housing allowance (VHA), be canceled.
APPLICANT STATES: In effect, that because of personal problems associated with his failed marriage and failed relationship with a second woman by whom he had a child, he did not notify the Finance Office of his divorce. This resulted in his receiving BAQ and VHA payments to which he was not entitled for a period of approximately 2 1/2 years. He adds that he has faithfully paid his ex-wife and his ex-girlfriend child support in the amounts of $300 and $200 per month respectively.
COUNSEL CONTENDS: NA
EVIDENCE OF RECORD: The applicant's military records show:
He was born on 24 December 1964 and enlisted in the Regular Army on 31 August 1986. He has remained on continuous active duty; has completed basic and advanced training, and the primary leadership development course; he was promoted to the rank of sergeant (E-5) on 1 February 1993.
The applicant divorced his wife on 28 September 1993. At that time, he was receiving BAQ and VHA payments based upon his marital status. Upon receiving his divorce, he should have informed Finance Office personnel of his new marital status. He also underwent two PCS (permanent change of station) moves to Korea and to Fort Dix, New Jersey, but did not mention his divorce either time. In December 1995, he PCSd to Panama where Finance Office personnel inquired into his marital status and discovered that he was divorced.
Finance Office personnel computed the amount of overpayment of BAQ and VHA at $11,659.42. The applicant sought remission and/or cancellation of his debt, stating that he knew he should have said something about his divorce, but didnt know anything about recomputing BAQ and VHA based upon his new status. He listed all of his debts and stated that repayment of the contested debt would constitute a financial hardship. His request was not favorably endorsed by his chain of command and was denied by the Total Army Personnel Command (PERSCOM) on 29 May 1996.
In the processing of this case, a staff advisory opinion was obtained from the Defense Finance and Accounting Service (DFAS)-Indianapolis Center. It provides that, in accordance with Department of Defense Financial Management Regulations (DoDFMR), Volume 7a, Chapter 7, an overpayment by the Government does not become an authorized entitlement to the soldier and must be collected back. The opinion contains no information, advice or recommendation which would constitute a basis for granting the relief requested.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. The applicant was a sergeant with more than 7 years of service when he and his spouse divorced. He was receiving BAQ and VHA payments based upon his marital status and should have known that his divorce would have an effect on such payments.
2. The applicant never notified his Finance Office of his divorce until more than 30 months later when Finance Office personnel made an inquiry of him. He received and spent funds to which he was not entitled during this entire period. He states that he provided allotments to his children, but provides no proof of same.
3. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement and demonstrate error or injustice.
4. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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