IN THE CASE OF:	

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20070016954 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, remission or cancellation of his 
$28,602.98 debt to the government.   

2.  The applicant states, in effect, that he requested command sponsorship for newly acquired dependents on or about 8 August 2005, after he had a child on 28 May 2004, and was married on 31 May 2005.  He claims command sponsorship was approved on 22 August 2005, which caused recoupment of monies received for dependent entitlements (Variable Housing Allowance (VHA)) received prior to that date.  

3.  The applicant provides an Application for Remission or Cancellation of Indebtedness (DA Form 3508-R) with accompanying documents in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that as of the date of his application to the Board, he was still serving as a staff sergeant (SSG) on active duty at 
Fort Hood, Texas.  

2.  On 18 August 2005, which he was stationed in Germany, the local finance office determined the applicant was in debt to the government in the amount of $28,602.98 based on the overpayment of VHA during the periods 7 November through 31 December 2003, 1 January through 1 September 2004, and 
2 September 2004 through 31 July 2005. 
3.  On 17 October 2005, the applicant's unit commander prepared a memorandum for the commander of the local finance office requesting that collection of the applicant's debt be stopped pending the final disposition of the applicant's application for remission or cancellation of indebtedness.  

4.  On 25 October 2005, the applicant’s unit commander submitted a memorandum in support of the applicant's application for remission or cancellation of indebtedness.  The commander stated that the applicant had properly applied for BAH for his dependents, who were returned to CONUS, and that he had moved from Government quarters once he was authorized and housing coordinated the arrangements for him to move to the local economy.  He further confirmed that the applicant had informed and coordinated with his chain of command on all these matters relating to the changes in his dependents status, and that the applicant was told by local finance officials that he was authorized to be reimbursed BAH allowances when his dependents were not 
in-country, provided he was supporting them, and that applicant properly reported the period during which he was and was not providing allotments by submitting the proper documentation through his chain of command to the finance office.  He concluded his supporting memorandum by stating that the applicant's conduct in relation to these money matters and the fact that the applicant acted in good faith throughout the processing of these entitlements, this matter should be reviewed.  

5.  The commander of the United States Army Europe Regional Dental Command, also provided a memorandum in support of the applicant’s application for remission or cancellation of indebtedness.  He stated that the applicant did not attempt to defraud the Government when he submitted the financial documents in question, which were all approved by his chain of command, and the collection of the debt could have a major impact on the Soldier's quality of life and could lead to his inability to repay other legal debts.  

6.  The applicant's record is void of any indication that his initial application for remission or cancellation of indebtedness was properly processing through channels to the appropriate Department of the Army office. 

7.  During the processing of this case, an advisory opinion was obtained from the Chief, Compensation & Entitlements Division, Office of the Deputy Chief of Staff, G-1.  This official states after a review or the facts surrounding this situation, it is clear that the applicant provided the serving personnel and finance offices the necessary information to determine his authorized allowances.  Therefore, it is his belief the applicant did not intend to enrich himself unjustly, and as a result he recommends the applicant's debt be cancelled.  

8.  Army Regulation 600-4 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.  Chapter 3 provides the administrative procedures for submitting an application for remission/cancellation of indebtedness, and paragraph 3-4 outlines the responsibilities of the Finance and Accounting Officer in the application process.  It states, in pertinent part, that he/she will ensure collection of the debt is stopped until a final decision is made.  The regulation further stipulates, in pertinent part, that in determining if injustice or hardship exists the soldier’s income, expenses, and a member’s contribution to the indebtedness by not having the situation corrected will be considered.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the debt was incurred through no fault of his own, and that the payments he received were authorized by proper personnel and finance officials based on the recommendations of his chain of command was carefully considered and found to have merit.  

2.  The evidence of record clearly establishes that the applicant provided all the proper documentation and that the overpayment of the allowances in question was clearly solely the result of a misinterpretation of the rules by local finance officials, who authorized the payment.  It further shows that the applicant provided all documentation to the proper personnel and finance officials, and that he never attempted to defraud the government through his submission of any of the documents in question.  The failure to process the applicant's original application for remission or cancellation of indebtedness by local personnel and finance officials calls into question the propriety of the original indebtedness action taken.  

3.  By regulation, applications for remission or cancellation of indebtedness to the United States Army may be approved based on injustice, hardship, or both, and that in determining if injustice or hardship exists the Soldier’s income, expenses, and a member’s contribution to the indebtedness by not having the situation corrected will be considered.  Given the applicant incurred this debt based on authorization errors made by the responsible local personnel and finance officials, it is concluded that it would be unjust to hold him accountable for this debt.  


4.  Further, as indicated by members of the applicant's chain of command, payment of this debt would result in placing an undue financial hardship on the applicant and his family.  The debt in question was incurred by the applicant through no fault of his own, and requiring him to repay the debt would be unjust and result in an undue financial hardship on the applicant and his family.  Therefore, it would appropriate to correct the applicant’s record to show his application for remission or cancellation of indebtedness to the United States Army was approved, and by reimbursing him any portion of the debt that has already been collected. 

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL 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 showing that the application for remission/cancellation of indebtedness of 
$28, 602.98, due to overpayment of VHA, submitted by the individual concerned was approved for the full amount of the debt, and by reimbursing him any portion of the total debt that may have already been collected. 




       _   __x_____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070016954



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ABCMR Record of Proceedings (cont)                                         AR20070016954


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