RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                                  20 OCTOBER 2005
      DOCKET NUMBER:                    AR20050002209


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Jeanette McCants              |     |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 reimbursement of funds collected from him as a
result of a debt of over-payments of entitlements that was caused by the
Army.

2.  The applicant states, in effect, that he should be reimbursed for the
debt he incurred as a result of over-payment of entitlements that was
caused by finance officials at Fort Riley, Kansas, due to their inattention
to detail and lack of proper supervision.  He further states that the
$2,566.00 was unjustly taken from him, despite his rebuttal to the debt,
and placed him in a financial hardship which he still feels today.

3.  The applicant provides copies of documents related to the debt and his
appeal of the debt.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the United States Navy from 9 February 1993
until he was honorably discharged as a personnelist third class (E-4) on 13
October 1999.  He had served 6 years, 8 months and 5 days of total active
service.

2.  On 24 August 2000, he enlisted in the Regular Army in the pay grade of
E-4, for a period of 3 years and training as a field artillery fire
direction specialist.  He was married at the time of his enlistment.

3.  He completed his training at Fort Sill, Oklahoma, and was transferred
to Fort Riley, Kansas, in August 2001.  He was assigned government quarters
on 17 December 2001; and on 15 January 2002, he requested advanced
dislocation allowance in order to move his dependents from Florida to
Kansas.

4.  Meanwhile, his December 2001 leave and earnings statement indicates
that he had an advance debt of $2,366.00.

5.  The available records do not contain and the applicant has not provided
sufficient documents to explain how the debt was originally incurred.
However, he has provided documents dated 4 January 2002, a year later, in
which he inquired as to why the deduction was being made.  He also
submitted a Inspector General Action Request in January 2002 regarding the
cancellation or reduction of the debt; however, he does not provide the
response/explanation to that request.

6.  On 4 January 2002, the commander of the 1st Finance Battalion at Fort
Riley dispatched a memorandum to the applicant’s battalion commander
informing him that the applicant had a previous outstanding debt in the
amount of $2,366.00 that needed to be collected and that the applicant had
the right to dispute the debt if he did not agree with it or he could
request that the collection be prorated.

7.  The applicant submitted a rebuttal to the debt on 7 January 2002 and a
request for remission or cancellation of the debt on 17 January 2002.  He
indicated at that time that he was divorced and it appears that the
application he provided is incomplete.

8.  The applicant reenlisted on 28 August 2002 for a period of 3 years and
assignment to Fort Hood, Texas.

9.  On 18 September 2003, in response to a congressional inquiry on behalf
of the applicant, officials at the Defense Finance and Accounting Service
(DFAS) – Kansas City responded to the effect that the applicant had
submitted an incomplete packet concerning his basic allowance for housing
(BAH) debt and that he had been requested to provide the documents
necessary to support his claim and had not done so.

10.  He was promoted to the pay grade of E-5 on 4 October 2002 and on 18
July 2003, he was reduced back to the pay grade of E-4 as a result of
nonjudicial punishment being imposed against him while in Iraq.

11.  In the processing of this case a staff advisory opinion was obtained
from the DFAS – Indianapolis which opines, in effect, that his debt was
valid, based on his entitlements; however, it could not be determined
whether the pay transactions were processed in a timely manner.

12.  The advisory opinion was provided to the applicant and he responded to
the effect that he disagreed with the response and that not only was the
debt incurred because personnel at Fort Riley and the DFAS did not know the
regulations and failed to process his rebuttal in a timely manner, he was
also entitled to the funds he received.  He went on to state that had his
rebuttal been processed in a timely manner, he would not have had to repay
the debt.

13.  There is no evidence to show that the applicant ever submitted a
complete application for remission or cancellation of debt to the Human
Resources Command – Alexandria in accordance with Army Regulation 600-4,
prior to the collection action.
14.  Army Regulation 600-4 serves as the authority for the remission or
cancellation of indebtedness for enlisted members.  It states, in pertinent
part, that the objective of remission or cancellation is to remit or cancel
debts that are considered to be unjust and that indebtedness may not be
cancelled or remitted when the funds obtained were converted to own use
through fraud, larceny, embezzlement, or other unlawful means.

15.  Department of Defense Financial Management Regulation (DODFMR) 7000.14
serves as the authority for military pay and allowances entitlements.
Paragraph 30236 states, in pertinent part, that the statutory purpose of
BAH at the with dependent rate is to at least partially reimburse service
members for the expense of providing private quarters for their dependents
when government quarters are not furnished.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant has shown through the evidence submitted with his
application that he was experiencing problems with his pay and that he made
numerous inquiries in attempts to correct the debt that he had been
assessed, he has failed to show through the evidence submitted with his
application or the evidence of record that the debt was invalid.

2.  The applicant was assessed the debt as a result of overpayment of his
BAH entitlement and the applicant has not shown that the DFAS incorrectly
calculated that debt.  While finance personnel may have been negligent in
the processing of his entitlements, the evidence still suggests that he
received funds to which he was not entitled to receive.

3.  Therefore, lacking evidence to show that he did not receive all of his
entitlements during the period in question, there appears to be no basis to
reimburse him for the overpayment of funds that were collected from him.

4.  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 that requirement.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JM___  ___JG __  ___JM __  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 for correction of the
records of the individual concerned.





            _____John Meixell__________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002209                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |N/A AD (AC) Soldier                     |
|DISCHARGE AUTHORITY     |N/A AD (AC) Soldier                     |
|DISCHARGE REASON        |N/A AD (AC) Soldier                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |N/A AD (AC) Soldier                     |
|ISSUES                  |293/REM/CAN DEBT                        |
|1.128.1000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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