MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 19 December 2002
         DOCKET NUMBER: AR2002076561

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Mr. Harry B. Oberg		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: That his debt in the amount of $8,079.93 be remitted.

APPLICANT STATES: That the debt was incurred because he received Basic Allowance for Housing - Difference (BAH - Diff) for 4 years during which time he honestly believed he was entitled to the allowance. He submitted the appropriate paperwork after he married his military spouse. He was given BAH - Diff because of a child from a previous marriage. He recertified his BAH status after he transferred to Hawaii and again was given the same entitlements. He did not intentionally draw this entitlement to defraud the government. He is not a finance specialist. Because of the circumstances, it was his impression that this entitlement was correct. When he outprocessed Fort Hood, TX, he was not told he was not entitled to BAH - Diff. When he inprocessed in Hawaii, he was not told he was not entitled to it. When he outprocessed Hawaii, he was not told he was not entitled to it. It was not until he inprocessed at Fort Sill, OK that he was told he was not entitled to BAH - Diff.

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

He enlisted in the Regular Army on 29 January 1987 for training as a 31V (Unit Level Communications Maintainer). He was promoted to Staff Sergeant, E-6 on 5 March 1998.

On or about 10 July 1998, while at Fort Hood, TX, the applicant married his current spouse. His child by a previous marriage was in the custody of his former spouse.

On 26 October 1998, after arriving in Hawaii, the applicant applied for housing and noted that he and his family would live off post, that his spouse was another Army member who would arrive in Hawaii on 1 December 1998, and that one son (his stepson) would reside with him. On 30 October 1998, he completed an Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) (BAQ was later redesignated BAH), and/or Variable Housing Allowance (VHA), DA Form 5960. He indicated on this form that he was married to a current service member, gave her social security number, and indicated her duty station was Fort Hood, TX.

The applicant's spouse apparently arrived in Hawaii in November/December 1998. On 29 December 1998, his spouse completed a DA From 4187, Personnel Action, requesting update of her Cost of Living Allowance (COLA)/Basic Allowance for Subsistence (BAS)/BAH. She indicated she had one son and that her spouse (the applicant) resided with her in non-government quarters. She indicated the applicant's name but not his status (i.e., military or civilian).

The applicant transferred to Fort Sill, OK apparently in February 2002. Apparently at this time it was discovered that he had been receiving BAH - Diff erroneously and that he owed the government $8,078.93.

The applicant submitted an Application for Remission or Cancellation of Indebtedness, DA Form 3508-R, on 19 March 2002. (This is a 6-page form. The applicant completed only page 1, the administrative data section; page 5, the remarks section; and page 6, his and the commander's certification section.) On page 1, item 15, the applicant checked that he based his application on injustice only. His commander recommended approval of his remission packet and noted that he in/out-processed several finance offices without this error being identified. His local finance office recommended the application be disapproved and noted that the DA Form 4187 prepared by his spouse's unit did not identify him (the applicant) as a service member.

On 18 April 2002, the Special Actions Branch, U. S. Total Army Personnel Command disapproved the applicant's request for remission or cancellation of his indebtedness, apparently based upon the applicant's failure to inform finance that he was married to another service member who also was receiving BAH.

The Department of Defense Financial Management Regulation (DODFMR), volume 7A, chapter 26 provides guidance for administering BAH. In pertinent parts, it states that dependency must be approved before entitlement to BAH is authorized. After initial approval, the Services must maintain adequate levels of internal audit to assure the legality, propriety, and correctness of all disbursements for BAH. It states that each member who is entitled to BAH on behalf of dependents must provide recertification to the Secretary concerned indicating the status of each dependent of the member to support entitlement to BAH on behalf of dependents upon arrival at a new permanent duty station. It states that, when one of two members married to each other is already receiving BAH at the with-dependent rate on behalf of children from a previous marriage, then any children born of their marriage 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. All told, the pertinent parts of the chapter governing BAH is about 27 pages long.

Army Regulation 600-4 gives instructions for submitting and processing applications for remission or cancellation of indebtedness to the United States. Paragraph 1-6 states that a soldier's debts may be remitted or canceled in cases arising from payments made in error to a soldier. Paragraph 1-12 states that, when determining if there is an injustice or hardship, the soldier's awareness of policy and procedures, past or present military occupational specialty, rank, years of service, and prior experience will be taken into consideration. Paragraph 1-13 states that the application must contain evidence that the applicant did not know, and could not have known, of the error and the applicant inquired of a proper authority and was told that the payment was correct.

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. 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.

2. While it is true that the DODFMR, including the chapter pertaining to BAH, is a large and, to the layman, sometimes confusing regulation, the general rule regarding BAH and dual-service families is simple and generally well-known among married soldiers.

3. While the Board recognizes that the Army is not liable for the erroneous actions of its officers, agents, or employees, even though committed in the performance of their duties, relief for a debt could be granted if the Board believed that it would be in the interest of justice and equity to do so.

4. However, ignorance alone does not amount to equity. The applicant has had the use of approximately $8,000 that he was not entitled to receive. He has not demonstrated that he relied to his detriment on the erroneous information given him (or the failure to give him correct information) by finance officials. He did not show that recoupment of the erroneous payment of BAH would create an undue hardship on him when he initially applied for remission or cancellation of this debt and he does not do so now.

5. The applicant is not entitled to relief as a matter of law. Based upon the facts in this case, it does not appear that he is entitled to relief as a matter of equity.

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

__RJO__ __ SK___ __HBO__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076561
SUFFIX
RECON
DATE BOARDED	2002/12/19
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.12
2.
3.
4.
5.
6.