RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 28 April 2005
DOCKET NUMBER: AR20040006453
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 |
| |Mrs. Nancy L. Amos | |Analyst |
The following members, a quorum, were present:
| |Mr. John P. Infante | |Chairperson |
| |Mr. Ronald E. Blakely | |Member |
| |Mr. Peter B. Fisher | |Member |
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 that his debt be cancelled.
2. The applicant states that finance never notified him that he was being
paid the incorrect amount of basic allowance for housing - differential
(BAH-DIFF). He did all the required recertifications.
3. The applicant provides no supporting evidence.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 29 June 1988. He was
promoted to Staff Sergeant, E-6 in military occupational specialty 74D
(Chemical Operations Specialist) on 1 May 2000. He was assigned to
Headquarters and Headquarters Company, 2d Battalion, 70th Armor on an
unknown date. On 6 March 2003, he deployed to Iraq. On 4 April
2003, he became a casualty when his vehicle ran into an anti-tank mine. He
departed Iraq on 7 April 2003.
2. On an unknown date, the applicant was found to be unfit for military
service and was to be permanently retired by reason of physical disability.
3. On 26 July 2004, the applicant was notified he owed a debt for
overpayment of BAH - DIFF. On this date, he completed a DA Form 3508-R
(Application for Remission or Cancellation of Indebtedness) applying for
remission or cancellation of the indebtedness. On 28 July 2004, his chain
of command recommended approval of his request.
4. On 29 July 2004, the applicant was released from active duty and
permanently retired by reason of physical disability with an honorable
characterization of service.
5. In the processing of this case, an advisory opinion was provided by the
Defense Finance and Accounting Service (DFAS). DFAS noted the applicant
separated with a debt for BAH-DIFF in the amount of $19,046.22 for the
period 1 April 1995 through 31 July 2004. DFAS contacted the Remission
and Waiver Branch, which informed DFAS that had they received the
applicant's request for remission or cancellation of the indebtedness prior
to his separation they would have recommended full remission of the debt
based on the criteria of Title 10, U. S. Code, section 9837. DFAS
therefore recommended that the applicant's records be corrected to show
that his application was received and processed prior to his separation and
full remission of the debt was granted.
6. Title 10, U. S. Code, section 9837 provides that the Secretary, if he
considers it in the best interest of the United States, may have remitted
or cancelled any part of an enlisted member's indebtedness or any of the
instrumentalities remaining unpaid before, or at the time of, that member's
honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. 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, the Board believes it would
be in the interest of justice and equity to grant the full relief
requested.
2. In accordance with information contained in the advisory opinion, had
the Remission and Waiver Branch acted upon the applicant’s request for
remission or cancellation of this indebtedness prior to his separation,
they would have remitted or cancelled the entire debt.
BOARD VOTE:
__jpi___ __reb___ _pbf____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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. showing he completed and his commander signed a DA Form 3508-R on
26 July 2004 requesting remission or cancellation of the indebtedness in
question; and
b. showing that the DA Form 3508-R was received and processed by the
appropriate office and approved for remission or cancellation of the total
amount prior to his separation.
2. That, as a result of the above corrections, collections made by DFAS
for this indebtedness, if any, be refunded to him as an erroneous
collection.
__John P. Infante_____
CHAIRPERSON
INDEX
|CASE ID |AR20040006453 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20050428 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |GRANT |
|REVIEW AUTHORITY |Mr. Schneider |
|ISSUES 1. |128.10 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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