MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 September 2002
         DOCKET NUMBER: AR2002072546

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Donald P. Hupman		Member
Mr. Kenneth W. Lapin		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)

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APPLICANT REQUESTS: Remission or cancellation of indebtedness ($5566.12) incurred as a result of overpayment for Basic Allowance for Housing (BAH).

APPLICANT STATES: In effect, that she received BAH at the “with dependents” rate after her divorce was final in the amount of $5566.12. She contends that she made several attempts to stop the BAH but was unable to because she did not have a copy of her divorce decree. She states that she made several attempts to obtain her divorce decree and that she did not know the exact date of her divorce. She also states that she knows a soldier is not entitled to receive BAH at the “with dependents” rate after they are divorced. She goes on to state that she requested cancellation or remission of this debt because she is stationed in a high cost living area with no Government housing. She states that she was not entitled to a Government Leased Housing Program because she could not stop her BAH. Had she been able to do so, she would have been authorized to receive payment of her rent and utilities in an amount that exceeded what she received in BAH. She points out that her commander recommended disapproval of her request for remission; however, she believes that her commander, who was not in command at the time of this incident, was given inaccurate information while making her decision. She states that she was never counseled on how to stop her BAH, that her supervisor made several attempts to get a copy of her divorce decree and that her supervisor also attempted to get the BAH stopped without a copy of her divorce decree. She reiterated that she knew she was not entitled to BAH at the “with dependents” rate, that she did try to stop it, that she went to her chain of command for assistance to stop it, and that she informed her chain of command that once her BAH got straightened out she would request remission or cancellation of the debt.

In support of her application, she submits a letter of explanation, dated 29 April 2002; a memorandum, dated 18 March 2002, from the Special Actions Branch, U.S. Total Army Personnel Command; an undated statement from the applicant; a Recommendation for Denial of Remission of Cancellation or Indebtedness, dated 17 January 2002; a memorandum for reconsideration, dated 9 January 2002; a request for remission of cancellation of indebtedness, dated 9 January 2002; a DA Form 3508-R (Application for Remission or Cancellation of Indebtedness), dated 8 January 2002; a DA Form 2823 (Sworn Statement), dated 8 January 2002; a letter, dated 7 December 2001, from the applicant’s immediate supervisor; a Memorandum for Record, dated 9 January 2002; a Leave and Earnings Statement for the period 1-30 November 2001; a Leave and Earnings Statement for the period 1-31 December 2001; copies of five e-mails; a copy of her divorce decree, dated 28 June 2000; DA Form 4856 (Developmental Counseling Form), dated 11 December 2001; and finance reports.


EVIDENCE OF RECORD: The applicant's military records show:

The applicant is currently serving in the Regular Army in the rank of staff sergeant/pay grade E-6.

The applicant provided a copy of her divorce decree which shows that she was divorced on 15 August 2000.

Between August 2000 and October 2001, the applicant received BAH at the “with dependents” rate which totaled $5566.12.

On 8 January 2002, the applicant executed a DA Form 3508-R (Application for Remission of Cancellation of Indebtedness) based on injustice.

In support of her claim, the applicant provided a letter, dated 7 December 2001, from her immediate supervisor at the time in question. Her supervisor attests that she attempted to obtain a copy of the applicant’s divorce decree, that she tried to get the applicant’s BAH stopped without a copy of her divorce decree, that she advised the applicant to set aside money to repay the Government and that the applicant expressed her interest to apply for remission of the debt.

The applicant’s pay records show that collection of her debt began in November 2001.

On 17 January 2002, the applicant’s commander strongly recommended disapproval of her request for remission or cancellation of the debt, full or partial. She states that the applicant “has carefully crafted and articulated an argument in which she attempts to justify taking and keeping $5,566.12 of taxpayer funds, to which she knew she was not entitled. This was payment of BAH at the with-dependents rate from August 2000 to October 2001. The facts are that [the applicant] knew she was divorced, was counseled repeatedly by her chain of command concerning what she needed to do to resolve the problem and to set aside the additional amount, pending receipt of the divorce decree. She failed to comply and, in my view, “hoped” no one would notice and ultimately keep the money. As a SSG [staff sergeant] with nearly 12 years of service, and a legal NCO [noncommissioned officer], [the applicant] knows that divorce decrees are public record and easily obtained. The SJA [Staff Judge Advocate] at HQ USMEPCOM [Headquarters, U.S. Military Entrance Processing Command] took less than an hour to obtain the decree in October 2001. [The applicant’s] argument she is “entitled” to the BAH because of an unrelated bachelor lease program is without merit and irrelevant to her case.”

On 18 March 2002, the Chief, Special Actions Branch, U.S. Total Army Personnel Command disapproved the applicant’s request for remission or cancellation of the debt.
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 applicant received overpayment of allowances for BAH in the amount of $5566.12.

2. The applicant’s commander strongly recommended that the applicant’s request for remission or cancellation of the debt be disapproved.

3. On 18 March 2002, the Special Actions Branch, U.S. Total Army Personnel Command disapproved the applicant’s request for remission or cancellation of the debt.

4. The Board considered the applicant’s contentions that she knew she was not entitled to BAH at the “with dependents” rate, that she tried to stop it, that she went to her chain of command for assistance to stop it, and that she informed her chain of command that once her BAH got straightened out she would request remission or cancellation of the debt.

5. The Board also considered the letter provided by the applicant’s immediate supervisor at the time in question which states that she attempted to obtain a copy of the applicant’s divorce decree, that she tried to get the applicant’s BAH stopped without a copy of her divorce decree, that she advised the applicant to set aside money to repay the Government and that the applicant expressed her interest to apply for remission of the debt.

6. However, the Board concludes that the applicant was a legal noncommissioned officer with lengthy experience and knew, by her own admission, that she was not entitled to payment for BAH at the “with dependents” rate after her divorce. Failure to provide a copy of her divorce decree in a timely manner, in this case, does not relieve the applicant of responsibility for paying back what she knew she was overpaid. No justification has been established to reimburse the applicant the overpayment collected against this just debt.

7. Based on the foregoing, the applicant has not convinced the Board that collection of her debt is unjust or that the overpayment should otherwise not be collected.

8. 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.

9. 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

AAO___ DPH_____ KWL_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072546
SUFFIX
RECON
DATE BOARDED	20020924
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.1000
2.
3.
4.
5.
6.