PROCEEDINGS


         IN THE CASE OF:
        


         BOARD DATE: 19 November 2002
         DOCKET NUMBER: AR2002076096


         I certify that hereinafter is recorded the true and complete record of the proceedings 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. John N. Slone		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Sherri V. Ward		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests remission and refund of his debt.

3. The applicant states, in effect, that a portion of his debt was collected prior to the commanders' signature in the amount of $2,348.60. He submitted his request on 23 April 2002, in the amount of $8,998.94, which was signed by his commander. His packet was forwarded to finance on 24 April 2002, and a portion of debt in the amount of $2,348.60 should have been returned to him.
In support of his application, he submits copies of his: DA Form 3508-R (Application for Remission or Cancellation of Indebtedness) with supporting documents; a memorandum from Chief, Special Actions Branch, Total Army Personnel Command (PERSCOM); a notice of indebtedness from the installation finance office with supporting documents; an e-mail notification; and a copy of his May 2002 leave and earnings statement (LES).

4. The applicant’s military records show he enlisted on 12 January 1994, and continues to serve on active duty in the rank of staff sergeant (SSG). On 18 March 2002, the applicant was notified of an indebtedness to the Government.

5. On 9 April 2002, the applicant executed a DA Form 3508-R based on injustice.

6. In a sworn statement, the applicant indicated that upon arrival in Korea, he was informed that he was entitled to receive Basic Allowance for Housing (BAH)–Differential. He was informed that he needed a copy of his divorce decree from 29 October 1995 and copies of his child support documents in order to start the process. He was also informed that he was entitled to receive BAH-Differential while assigned to Fort Bragg, North Carolina. During his tour in Korea, his current spouse (a military service member) was also receiving BAH for her dependents. Upon his return to Fort Bragg, he and his spouse both were informed that they were both entitled to draw BAH–Differential along with his BAH without dependents, which he had been receiving. He also stated that he had documentation showing that they were both authorized BAH–Differential. He was later informed that he was not entitled to received BAH–Differential and BAH without because he was now married to another service member; however, he was married to his current spouse (a military service member) when he began receiving BAH–Differential. He felt that personnel at finance were not aware of the regulation and that they were unable to provide answers as to why he was not authorized to receive both entitlements.





7. On 17 April 2002, the installation finance office prepared a memorandum, Subject: Notice of Indebtedness with a suspense date of 17 May 2002. The purpose of this memorandum was to inform the applicant that he was indebted to the US Government in the amount of $8,998.94 and failure to respond by the
suspense date would result in an administrative fee.

8. On 23 April 2002, an e-mail notification was prepared by the local Debt Management Personnel Officer (DMPO) to the Defense Finance and Accounting Service (DFAS). The DMPO stated that the applicant was not given due process on his debt totaling $2,343.60 and that a portion of the debt had already been collected. He requested that DFAS recredit the applicant's account so that his debt could be suspended until the applicant submits his remission packet.

9. On 17 May 2002, the applicant was notified by his local finance office of an overpaid entitlement of BAH–Differential in the amount of $8,998.94.

10. On 22 May 2002, the Special Actions Branch, Total Army Personnel Command (PERSCOM), approved remission or cancellation of the remaining indebtedness of $6,650.34. The letter also informed the applicant that $2,348.60 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 he could apply to the Army Board for Correction of Military Records for further review.

11. 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.

12. Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 26, paragraph 260402, subparagraph B, states: “When one of two members married to each is already receiving BAH at the with-dependent rate on behalf of an adopted child(ren), child(ren) from a previous marriage, or an illegitimate child(ren), then any child(ren) born of their marriage, or adopted by them, is within the same class of dependents for which the member is receiving BAH and the other member may not claim the children for BAH purposes However, if the member elects to stop receiving BAH at the with-dependent rate, then the other member may claim the child(ren) for BAH purposes."



13. When both members are entitled to BAH with dependents, BAH without dependents, or BAH-Differential on behalf of child(ren) from prior relationships, and marry, are assigned to the same or adjacent bases, and are not assigned government quarters, only one member may receive BAH at the with dependent rate on behalf of the common class of dependents.

14. BAH–Differential is the housing allowance amount for a member who is assigned to single type quarters and who is authorized BAH solely by reason of the member's payment of child support. A member is not entitled to BAH–Differential if the monthly rate of that child support is leas than the BAH–Differential. The BAQ–Differential amounts are determined by calculating the difference between BAH with dependents and BAH without dependents for the member's grade.

CONCLUSIONS:

1. The evidence of record shows that the applicant received an overpayment of BAH–Differential in the amount of "$8,998.94," of which $2,348.60 was collected back and $6,650.34 was remitted and cancelled based on injustice. He has retained the benefit of $6,650.34 that he received as overpayment and is not required to repay. The amount that was collected, $2,348.60, was a just debt to pay back overpayment that he had received.

2. The Board acknowledges that the applicant and his spouse (a military service member) were informed by finance that they were entitled to BAH with dependents and BAH-Differential, which was incorrect in accordance with regulation, and which incurred a debt based on error. The Board believes that PERSCOM would have approved cancellation of his entire debt, based on the circumstances, if it had been received prior to the collection of $2,348.60.

3. The Board believes that collection of his debt is unjust and that the debt in the amount of $2,348,60, collected prior to his commander's signature, should be returned to him.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.









RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected by returning the monies previously collected on his debt in the amount of $2,348.60.

BOARD VOTE:

__js___ __mm____ __sw___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___John N. Slone____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002076096
SUFFIX
RECON
DATE BOARDED	20021119
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	293
2.
3.
4.
5.
6.