MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 February 2002
         DOCKET NUMBER: AR2001062175

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. George D. Paxson		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Thomas A. Pagan		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

---

APPLICANT REQUESTS: In effect, remission or cancellation of indebtedness in the amount of $15,889.60 which was incurred as a result of overpayment of Basic Allowance for Housing (BAH) with dependents during the period 29 November 1999 through 10 January 2001.

APPLICANT STATES: In effect, that her indebtedness should be disregarded and in return be remitted. She also states that her supervisor at Fort Hamilton, New York forwarded documents to finance pertaining to her assignment and termination of Government quarters. During the timeframe of April 2000, while attending military school, she called her bank to inquire about her monthly deposit. The amount relayed to her was $496.51, which was small and caused a panic attack. She then called her finance NCO to inquire as to why the amount was so small and why she had a debt in the amount of $1,989.05. She was informed that the reason for the debt was due to overpayment of BAH and that no additional funds were due. She was provided a copy of her Leave and Earning Statement (LES) for the month of April 2000 and did not concern herself with looking over any additional LES statements after being assured that everything was okay. She assumed that the issue of her debt was in the past,
until she was required to move out of family housing in January 2001, and completed a DA Form 5960 (Request to Start/Stop, or Change BAQ). This form, once submitted, apparently revealed the complete BAH indebtedness. She had no idea that she had incurred a debt until she received a DD Form 139 (Pay Adjustment Authorization), dated 1 March 2001. She goes on to state that this overpayment was an error by her unit and finance, which she found totally unacceptable, and that it is an injustice to repay this debt. In support of her application, she submits copies of: two transmittals, dated 20 December 1999 and 13 January 2001; an LES (Defense Finance and Accounting Form 702); a
DD Form 139; and a copy of a memorandum from the Defense Military Pay Office, dated 24 May 2001.

EVIDENCE OF RECORD: The applicant's military records show she enlisted on 17 September 1980. She continues to serve and is currently assigned to Fort Hamilton, New York in the rank of SSG.

The applicant provided a copy of a memorandum, Subject: Transmittal of Assignment and/or Termination Orders, dated 20 December 1999, from housing operations. The memorandum stated that the applicant was assigned Government quarters effective 29 November 1999.

The applicant provided a copy of her LES for the month of April 2000, which shows that she was paid a net amount of $496.51 and with a debt payment of $1,989.05.



The applicant provided a copy of a memorandum, Subject: Transmittal of Assignment and/or Termination of Orders, dated 23 January 2001, from housing operations. The memorandum stated that the applicant’s Government quarters were terminated effective 11 January 2001.

The applicant provided a copy of a memorandum subject: Application for Remission of Cancellation of Indebtedness, dated 24 May 2001, signed by the Director, Defense Military Pay Office – Indianapolis (DMPO). The Director stated that the supporting documents did not justify injustice. The applicant was receiving BAH while residing in government quarters and that her unit was aware of this. The DMPO recommended disapproval.

The applicant provided a copy of a DD Form 139, dated 1 March 2001, which shows that she was overpaid BAH during the period 29 November 1999 through 10 January 2001, in the amount of $15,889.60.

In the processing of this case a staff advisory opinion was provided by the Chief, Special Actions Branch, U.S. Total Army Personnel Command (PERSCOM). The opinion stated that the applicant’s request was based on an injustice only. Her overpayment of BAH occurred because the applicant was residing in Government quarters and the applicant claimed she took action with her finance office. She moved into Government quarters on 29 November 1999, and in April 2000 she attend school at Fort Gordon. Partial remission in the amount of $8,137.60 was approved by PERSCOM. The opinion also stated that any delay caused by the system is regrettable; however, a soldier who had knowledge that BAH was no longer authorized should be expected to safeguard funds that are not authorized. The fact that the applicant did receive her LES in June 2000 does not justify remission of the entire debt.

The applicant was provided a copy of this opinion for possible comment prior to consideration of her case.

In her rebuttal, the applicant stated that she was performing duty at one unit while assigned to another unit and has provided a copy of her orders. She also states that the evidence of record shows that her termination of quarters was forwarded to finance. She does not understand why there was a delay in forwarding documents when she provided evidence to support the date it was forwarded by housing to finance. She is unable to understand the delay at finance for almost a year, why their business as usual thinking is okay, and that no one is being held accountable for this action, except the soldier. She also states that she is an honest person and to accept money that did not belong to her would be stealing. Her BAH indebtedness has caused her undue stress and a terrible injustice and hardship.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The evidence of record shows that the applicant was assigned government quarters effective 29 December 1999, and government quarters were terminated on 10 January 2001. The evidence also shows that the applicant received payment for BAH with dependents during the period 29 November 1999 through 10 January 2001, for a total amount of $15.889.60.

2. The PERSCOM approved the applicant’s application for remission or cancellation of indebtedness in a partial amount of $8,137.60.

3. The Board considered the applicant’s contentions that her overpayment was an error by the unit and finance and was no fault of her own. However, the Board concludes that the applicant was a noncommissioned officer with lengthy experience and knew, or should have known, that she was not entitled to payment for BAH with dependents while she resided in Government quarters.

4. Based on the foregoing, the applicant has not convinced the Board that collection of the remaining portion of the overpayment is unjust or that the overpayment should otherwise not be collected.

5. 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 this requirement.

6. 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

__gp___ __mm____ __tp___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

---

INDEX

CASE ID	AR2001062175
SUFFIX
RECON
DATE BOARDED	20020221
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	ACTIVE DUTY
DISCHARGE AUTHORITY	AR . . ACTIVE DUTY
DISCHARGE REASON
BOARD DECISION	GRANT/PARTIAL
REVIEW AUTHORITY
ISSUES 1. 293
2.
3.
4.
5.
6.