RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 December 2004
      DOCKET NUMBER:  AR2004103428


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Jennifer Prater               |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Diane J. Armstrong            |     |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, in effect, reconsideration of his request that
his debt to the government resulting from an overpayment of his basic
allowance for housing (BAH).

2.  The applicant states, in effect, that in its original deliberation, the
Board erroneously concluded that he knowingly accepted additional payments
after the effective date of his retirement, which was not supported by the
evidence presented to the Board.  He further argues that the Board held him
to a higher standard than it did the subject matter experts of the Defense
Finance and Accounting Service (DFAS) in Atlanta.  He further claims that
since early in 2000, he did the reasonable thing when faced with a
situation with which he had no experience and he could not be expected to
know what his current BAH entitlement would be, when the subject matter
experts could not clarify when they were requested to do so.  He concludes
by stating that due to the extenuating circumstances involved and the
undisputed fact that DFAS personnel caused the erroneous payments, it is
unfair to penalize him by forcing him to pay interest, penalties and/or
administrative costs.

3.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003086544, on 13 January 2004.

2.  The applicant’s new argument is, in effect, that the Board has held him
to a higher standard than the DFAS subject matter experts and it was unjust
to hold him responsible for a debt that was the result of administrative
error on the part of these experts.

3.  Army Regulation 37-104-4 (Military Pay and Allowances Policy and
Procedures-Active Component) provides Department of the Army (DA) policies
for entitlements and collections of pay and allowances for active duty
soldiers.  It is used in conjunction with Department of Defense Financial
Management Regulation (DoDFMR), Volume 7, Part A (Vol 7A) DOD 7000.14-R.
4.  Paragraph 28-2 of the military pay regulation states, in pertinent
part, that if the Secretary of Defense or any designee determines that a
soldier is indebted to the U.S. Government as a result of an erroneous
payment made to or on behalf of the soldier by an agency of the U.S.
Government, that debt may be collected.

5.  Paragraph 32-3 of the same regulation states, in pertinent part, that a
claim of the United States against a Soldier or former Soldier, arising out
of an erroneous payment of pay and allowances may be considered for waiver,
when collection of the erroneous payment would be against equity and good
conscience, and would not be in the best interest of the United States.
Paragraph 32-4 states, in pertinent part, that a debt may not be waived
merely because it resulted from administrative error.  It further states
that no one is entitled to unearned compensation, and only in very unusual
circumstances would equity and good conscience suggest that an individual
should keep an overpayment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the Board held him to a higher standard than
the subject matter experts and that it would unjust to penalize him for the
administrative errors of these experts was carefully considered.  However,
by law and regulation, if a determination is made that a Soldier or former
Soldier is indebted to the U.S. Government as a result of an erroneous
payment, the amount of the debt may be collected.

2.  The law does allow for a waiver of debt even if there is no evidence of
fraud, misrepresentation, fault, or lack of good faith.  However, the
applicable law and regulation stipulate that no one is entitled to unearned
compensation, and only in very unusual circumstances would equity and good
conscience suggest that an individual should keep an overpayment.

3.  The conclusion contained in the original Board decisional document that
indicated that as a senior noncommissioned officer, the applicant should
have known that he was not entitled to the overpayments of BAH that
resulted in his debt was reasonable.  The applicant should have received
monthly leave and earnings statements that indicated the amount of BAH he
was receiving and the area upon which the allowance was based.
4.  Further, the applicant’s contention that subject matter experts could
not resolve the proper entitlement indicates he was well aware there were
problems with his pay.  Once he became aware of potential problems with his
pay, it reasonably could be expected that he would have taken the financial
measures necessary to ensure he could handle repayment once the amount of
his debt was validated.

5.  In view of the facts of this case, given the BAH debt is valid, there
is an insufficient evidentiary basis to support amending of the original
Board decision in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__DJA__  __JLP___  __LE  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR2003086544, dated 13 January 2004.




            ____Jennifer L. Prater_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004103428                            |
|SUFFIX                  |                                        |
|RECON                   |AR2003086544  2004/01/13                |
|DATE BOARDED            |2004/12/14                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  293  |128.1000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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