MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 October 2002
         DOCKET NUMBER: AR2002073826

         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. Fred N. Eichorn		Chairperson
Mr. Elzey J. Arledge		Member
Ms. Shirley Powell		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 and refund of her collected debt.

APPLICANT STATES: That a portion of her debt was collected prior to the commanders' signature on her application for remission or cancellation in the amount of "$5771.75." ($5771.25) The debt management office in Belgium collected this debt due to inappropriate information given to herself and her chain of command. Upon determination that the debt was not due to an error on her or her adjutant's part, the commander spoke to the finance officer in Belgium and requested justice on the applicant's part. The commander was instructed to prepare a memorandum requesting that her debt be exonerated and returned it back to the debt management office. This action was completed and the adjutant monitored the status of her case on a monthly basis until she was reassigned. In support of her application, she submits a copy of a memorandum from her commander, dated 2 June 1999, and a copy of a memorandum from Chief, Special Actions Branch, Total Army Personnel Command (PERSCOM).

In support of her application, she submits a memorandum, subject: Statement of Injustice. She states that she submitted a DA Form 4187 (Personnel Action) in August 1998, requesting Command Sponsorship. After one year in Belgium on an All Others Tour, she decided to transfer her dependents in June of 1998 who remained with her during her tour. She was instructed by her command that she must request command sponsorship. Documents were submitted and approved and forwarded to finance for appropriate action. Her adjutant forwarded copies of her approval to finance each month in order to insure that her cost of living allowance (COLA) reflected her dependents. In March 1999, her workload doubled and she was forced to perform 12 hour rotating shifts. It was indefinite as to how long her period of shifts would be, so she requested cancellation of her Command Sponsorship based on hardship of her dependents and, at no expense to the government, transferred her dependents back to North Carolina.

After documentation was completed and a determination made on her tour status, she received a "no pay due" in May 1999 and was unable to pay her rent. She was informed that from August 1998 to May 1999 she was overpaid Overseas Housing Allowance (OHA) because her tour had initially been changed to a Command Sponsored tour and it was discovered after her request for cancellation was forwarded to finance. Her commander spoke to her and the adjutant and neither of them was aware that her OHA should have been changed. She had not changed residence, nor had the OHA for Belgium, where she resided, changed. The adjutant explained to her commander that the approval for her request to change her tour to a Command Sponsored tour was sent to finance on several occasions in an effort to correct her COLA to reflect with dependents.



Her commander discussed the issue with the finance officer in charge and decided that it would be in the best interest, to prevent a long-term hardship, to request a cancellation of the debt. It was not on anyone’s part to deceive the military, nor to cause hardship to herself. The debt was suspended, and the debt management section informed her that she would receive reimbursement within the next couple of months for the portion that had already been collected. Her commander spoke to her landlord explaining the situation, and ensured him that she would pay the past two months rent once the funds had been reimbursed back to her. The commander completed the memorandum requesting cancellation of her debt for "$5771.21," as he was instructed, and ordered the adjutant to follow this action through and brief him each month on the situation. He called the debt management section each month inquiring about her expected refund of the collected monies, and each time was informed that the refund would be shown on her next month's leave and earning statement (LES). She was reassigned in December 1999 and had not received any refund and no one could give her or her command an answer concerning the status of her request for cancellation of her debt.

She requested a pay advance to pay the landlord two months back rent so that she could clear the base. She was also required to request a second advance at her gaining unit to pay the initial deposits for rent and other necessities. The debt management office at Fort Bragg released the suspended debt and she received another "no pay due." She was also informed that the debt management officer in Belgium had not properly submitted her command’s request for cancellation of her debt. While at Fort Bragg, her packet was returned to her and was properly submitted and forwarded through proper channels. She encountered much hardship and stress over this issue and continues to this day to seek justice.

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

She enlisted on 8 June 1984, and continues to serve on active duty in the rank of staff sergeant (SSG).

On 2 June 1999, the applicant's commander prepared a memorandum in reference to the applicant's case to finance. The commander requested that the applicant be totally exonerated of the debt in the amount of "$5771.21" due to the Unites States Government. The applicant incurred this debt as the result of an overseas change of tour from an All Others Tours to a Command Sponsorship Tour. She was not properly informed of the financial consequences associated with this action prior to requesting her change of tour, and was unaware that entitlements paid to her for Overseas Housing Allowance would be recouped.
The applicant cancelled her Command Sponsorship Tour due to hardship and total recoupment of this debt created an extreme financial burden upon the


applicant's household. The commander stated that if total exoneration of the applicant’s debt was not approved, then a request for an appropriate repayment plan should be considered due to the fact the applicant's pay was the only source of income for her household. Immediate recoupment of her debt would adversely effect the service member’s ability to provide the necessities, i.e., shelter, food, gas, etc., required for daily living.

On 28 November 2000, the Special Actions Branch, Total Army Personnel Command (PERSCOM), approved remission or cancellation of the remaining indebtedness of $3,352.25. The letter also informed the applicant that $2,422.96 of the debt collected prior to the commander’s suspension of the debt collection, could not be considered for remission or cancellation under the provisions of paragraph 1-11b, Army Regulation 600-4. The letter stated that if the applicant felt that an injustice had occurred surrounding the collected portion of the debt, that she could apply to the Army Board for Correction of Military Records for further review.

Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members), paragraph 1.11b, states that the Commanding General, PERSCOM, will not consider the remission or cancellation of a debt repaid or collected before the immediate commander signed the DA Form 3508-R (Application for Remission or Cancellation of Indebtedness). If a debt is paid in part, however, the remaining portion will be considered.

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 provided by applicant shows that she received an overpayment of OHA in the amount of "$5,775.21," of which $2,422.96 was collected back and $3,352.25 was remitted and cancelled due to financial hardship. She has retained the benefit of the $3,352.25 that she received as overpayment and is not required to repay. The amount that was collected, $2,422.96, was a just debt to pay back overpayment that she had received.

2. The Board notes that the commander states in his request that the applicant incurred this debt as the result of an overseas change of tour from an All Others Tour to a Command Sponsorship Tour. However, this debt was incurred due to an overpayment of OHA.

3. The applicant states that she was not properly informed of the financial consequence associated with this action prior to requesting a change of tour, and was unaware that entitlements paid to her for OHA would be recouped. Failure



of the system to properly stop overpayment 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 back against this just debt.

4. The Board concludes that the applicant was a noncommissioned officer with lengthy experience and knew, or should have known, that a change in her overseas tour would incur a debt if proper procedures were not followed.

5. Based on the foregoing, the applicant has not convinced the Board that collection of her debt is unjust or that the debt in the amount of $2, 422.96, collected prior to her commander’s signature, should be returned to her.

6. 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.

7. 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

__fe___ ___ea___ ___sp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073826
SUFFIX
RECON
DATE BOARDED	20021022
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.1 – Remission/Cancellation of Debt
2.
3.
4.
5.
6.