RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:  27 May 2004
      DOCKET NUMBER:  AR2003090619


      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. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Regan Smith                   |     |Member               |
|     |Mr. Thomas O’Shaughnessy          |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests cancellation or remission of his debt for
overpayment of family separation allowance (FSA).

2.  The applicant states that there was a false declaration of indebtedness
on his DD Form 139 (Pay Adjustment Authorization) and an insufficient
investigation in the circumstances involving his FSA, Overseas Housing
Allowance (OHA), and his Basic Allowance for Housing (BAH).

3.  The applicant provides copies of his:  DD Form 139 (Pay Adjustment
Authorization); travel orders; AE Form 210-50B (Statement of
Nonavailability for Unaccompanied Personnel Housing [UPH] Quarters); DD
Form 2367 (Individual OHA Report); Computation of OHA; Defense Finance and
Accounting Service (DFAS) Form 702 (Leave and Earning Statement [LES]); and
a copy of his remission packet.

4.  The applicant provides a letter of explanation about the extenuating
circumstances concerning his cancellation and remission of indebtedness
that was approved in the amount of $3,332.41, which was the BAH portion of
his debt.  His remaining balance or indebtedness is for FSA in the amount
of $5,955.96.  According to DFAS, there were no grounds to remit or cancel
his debt based on injustice or hardship.

5.  He states that based on the evidence provided in his travel orders that
the statement on his DD Form 139 was in fact inaccurate.  His travel orders
failed to show that he was not authorized FSA I; however, it indicated that
FSA II and temporary lodging allowance (TLA) were not payable.  His
Statement of Nonavailability directly implies that he had to move off post
because government quarters were not available for him.  He completed the
required documents to activate his OHA/Move-In Housing Allowance (MIHA).
His family separation housing (FSH) and BAH Type II without dependents rate
were used to calculate his OHA.  He also states that he questioned several
finance officials regarding dual payment of OHA.  However, based on his
lack of knowledge in finance policies and regulations, he had no reason to
doubt their decision making process as to his situation and any approval of
entitlements received.  After notification of his indebtedness, he
requested a printout of his pay history and later discovered how the dual
OHA and BAH were being divided and compensated.






6.  The confusion in the name change of FSA to FSH was a contributing
factor for any kind of intervention on his part.  He now understands how
and why FSH was authorized after his research.  In conclusion, he states
that he is very disappointed in the minimal support that he has received
from finance.  This debt has caused him undue hardship to his family and
has altered his focus on meeting the Army's mission requirements.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he enlisted on 27 August 1991.
He continues to serve on active duty in the rank of sergeant first class
(SFC/E-7).

2.  On 20 November 2000, travel orders were published authorizing advance
return of the applicant's dependents from Bamberg, Germany to Vancouver,
Washington.  His orders indicated that FSA II and TLA were not payable.

3.  On 28 November 2000, a Statement of Nonavailability for UPH Quarters
was completed by the applicant and approved on 1 December 2000 by the UPH
manager.  This document provided the applicant the approval to reside off
post for the convenience of the government.

4.  On 30 November 2000, the applicant requested an advanced variable
housing allowance (VHA) for private rental dues that were approved on
1 December 2000.

5.  On 7 February 2001, the applicant requested OHA, which was approved
with an effective date of 12 January 2001.  He provided a copy of his OHA
computation sheet which shows that he was entitled to a lump sum payment of
MIHA in the amount of $655.50.  However, his May 2001 LES shows that he
received OHA in the amount of $190.38

6.  The applicant provides several of his LES's that show his FSA, BAH, OSA
payments.

7.  On 1 May 2002, a DD Form 139 was prepared.  It stated that the
applicant was paid the incorrect BAH rate from 11 January 2001 through
31 March 2002 in the amount of $3.332.41 and FSH in the amount of
$5,955.96.  His BAH rate should have been at the Table Rate the entire
period.  His dependents departed Germany early on travel orders that
specifically stated that the applicant was not authorized FSA.  It
indicated the total amount of BAH and FSA paid and amount due to the United
States Government.



8.  On 17 May 2002, the applicant executed a DA Form 3508-R (Application
for Remission or Cancellation of Indebtedness) based on injustice.  He also
provided a sworn statement in support of his request detailing the sequence
of events that led to his debt.

9.  On that same day, his commander provided a statement in regards to the
applicant's debt to DFAS.  The commander stated that the applicant acted in
good faith when he received his BAH and FSH and was a valuable
noncommissioned officer (NCO) to the US Army.  A copy of his orders was
provided to DFAS when he advanced returned his dependents.  The applicant
in no way meant to defraud or mislead the government.  However, when he
received his LES, after submission of his orders to DFAS, the numbers and
amounts changed indicated that the appropriate changes had been made.  The
applicant, not being a finance NCO, assumed that the changes were correct
and had no reason to question his LES.  The commander also stated that he
should not be held accountable for repayment of funds paid to him in good
faith when DFAS was aware of the change via orders that were properly
submitted.  This was clearly an oversight by DFAS or by personnel working
in DFAS and not the responsibility of the applicant.  The applicant has
been financially damaged by any attempts to collect the alleged
overpayment.

10.  On 22 May 2002, the battalion commander recommended approval of the
applicant's request for remission of his debt.  He stated that the
applicant provided all documents as required and put his faith in the
finance system that they would compute the correct pay and advise him of
what he was authorized.  Finance personnel made these errors and mis-
advised the applicant causing him to receive erroneous pay.  Collection of
this debt would cause tremendous hardship on the applicant and his family.
Due to errors made by finance, and the hardship that would result, he
strongly recommended remission of all or part of the debt.

11.  On 24 June 2002, the Chief, Special Actions Branch, Total Army
Personnel Command (PERSCOM), approved partial remission or cancellation of
the indebtedness in the amount of $3,332.41.  It was determined that there
were no grounds to remit or cancel the remaining portion of the debt on the
basis of injustice or hardship.  The applicant was to contact the DFAS for
further proration of the remaining balance of $5,955.96.  PERSCOM 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 (ABCMR) for further review.




12.  Title 37, USC section 403, states that except as otherwise provided by
law, a member of a uniform service who is entitled to basic pay is entitled
to BAH at the monthly rates prescribed under this section or another
provision of law with regard to the applicable component of the BAH.  The
amount of BAH for a member will vary according to the pay grade in which
the member is assigned or distributed for basic pay purposes, the
dependency status, and the geographical location of the member.

13.  Department of Defense (DOD) Financial Management Regulation, Volume
7A, Chapter 26, Paragraph 260101A states that BAH is payable to members on
active duty and will vary according to the grade in which serving or
appointed for basic pay purposes, dependency status, and the permanent duty
station (PDS) assigned.

14.  Paragraph 260101F states that BAH-II rates are established by the
Secretary of Defense.  BAH-II is the housing allowance entitlement for
members not specifically entitled to full BAH in some areas.

15.  BAH-II is the equivalent to what used to be basic allowance of
quarters (BAQ).  It does not vary by geographic location.  It is the
housing allowance, or is used to calculate the housing allowance for
members in particular circumstances.

16.  Paragraph 260303 states that a member with dependents may be assigned
designated inadequate quarters on a rental basis without loss of BAH-II.

17.  Chapter 27, Paragraph 2701 states that FSA is payable only to members
with dependents.  Two types of FSA are authorized:  Type I and II.  Both
are payable in addition to any other allowance or per diem to which a
member may be entitled.  A member may qualify for FSA-I and FSA-II for the
same period.  In that case, concurrent payments of both are authorized.  A
member, however, may not receive more than one payment of FSA-II for the
same period, even though qualified for several types of FSA.  FSA-I applies
to a location outside the contiguous 48 states, the District of Columbia,
and Hawaii.

18.  FSA-I is to pay a member for added housing expenses resulting from
enforced separation from dependents.  It is payable to each member with
dependents who is on permanent duty outside the US or in Alaska who meets
all of the following conditions:  (1) transportation of dependents to the
permanent duty station or to a place near that station is not authorized at
government expense; (2) dependents do not reside at or near the permanent
duty station or; (3) adequate government quarters or housing facilities are
not available for assignment to a member and adequate government quarters
or housing facilities are not assigned.  FSA-II provides compensation for
added expenses incurred because of enforced family separation.

19.  Subparagraph 280901 pertains to waiver of indebtedness.  It states
that recovery of erroneous payments of pay and allowances to or on behalf
of a member or former member of the Uniformed Services, may be waived if
recovery is determined to be against equity and good conscience.  Criteria
are met by finding that:  (a) the erroneous payment occurred through
administrative error; and (b) there is no indication of fraud,
misrepresentation, fault or lack of good faith on the part of the
respondent.

20.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness for
Enlisted Members) provides instructions for submitting and processing
applications for remission or cancellation of indebtedness to the United
States Army.  Applications must be based on injustice, hardship, or both.
This includes debts caused by errors in pay to or on behalf of a soldier.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was authorized advance
return of his dependents to the US and that his orders indicated that FSA
II and TLA were not payable.  He was approved to reside off post for the
convenience of the government and approved to receive OHA.

2.  A pay adjustment authorization was prepared by the applicant's local
finance office that indicated that the applicant was paid the incorrect BAH
rate from 11 January 2001 through 31 March 2002 in the amount of $3,332.41
and FSH in the amount of $5,955.96.  It was discovered that his BAH rate
should have been at the Table Rate the entire period.  The applicant's
dependents departed Germany early on travel orders that specifically did
not authorize FSA.

3.  The applicant executed a DA Form 3508-R based on injustice that was
indorsed and supported by his command.  His commander stated that he acted
in good faith when he received his BAH and FSH, was a valuable NCO, and
that orders were provided to DFAS to show he advance returned his
dependents.  The applicant in no way meant to defraud or mislead the
government and was unaware that he was provided with the incorrect FSA/FSH.
 The applicant later reviewed his LESs, after submission of his orders, and
assumed that the changes were correct and had no reason to question
finance.

4.  The battalion commander recommended approval of the debt waiver,
stating that the applicant had provided all the required documents, and put
his faith in the finance system to compute the correct pay and advise the
applicant of what he was authorized.  The battalion commander noted that
errors were made by finance and that the applicant was mis-advised causing
him to receive erroneous pay.  This collected debt caused tremendous
hardship on the applicant and his family.

5.  Based on the preponderance of evidence, it is apparent that there was
no way that the applicant could have been aware of the correct amount of
FSA/FSH that he was entitled to.  His advance return of dependent orders
clearly stated that FSA II and TLA were not payable and failed to state if
FSA I was actually payable.  The applicant was paid and assumed during the
period in question that he was paid the correct BAH and FSA/FSH.

6.  The evidence shows that the applicant was approved for partial
cancellation of the indebtedness in the amount of $3,332.41, that was the
BAH portion of the overpayment, and that there were no grounds to remit or
cancel the remaining portion, that was FSA/FSH, based on injustice or
hardship.

7.  It appears that errors were made in calculating his authorized pay and
that the applicant was a victim of these circumstances.  Therefore, in the
interest of equity and justice, the Board recommends correction of the 24
June 2002 memorandum from PERSCOM to show that his entire original debt of
$9,288.37 was approved for remission or cancellation.  This would show that
the portion of the FSA/FSH in the original amount of $5,955.96 that has
been collected or remains to be collected is an invalid debt and that the
applicant is entitled to be reimbursed the amount of monies collected and
the uncollected portion of the debt be cancelled.

BOARD VOTE:

__mm___  __rs____  ___ts____  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

      a.  correction of the 24 June 2002 memorandum from PERSCOM to show
that his entire original debt of $9,288.37 was approved for remission or
cancellation; and




      b.  showing that the portion of the FSA/FSH in the original amount of
$5,955.96 that has been collected be reimbursed to the applicant and the
uncollected portion of the debt be cancelled as a debt that is no longer
valid.




            ___Melvin Meyer___
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2003090619                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040527                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |293                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |