IN THE CASE OF:	  

		BOARD DATE:	        26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080005296 


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 remission or cancellation of indebtedness in the amount of $27,230.96 in overpayment of basic allowance for housing (BAH) for one year or, in the alternative, that the Government collect only 2 months of BAH overpayment amounting to $2,652.00.  She further requests that her son's concurrent travel orders be rescinded and that command sponsorship for her son be approved effective October 2006.

2.  The applicant states that in 2005, she was attending the Combined Logistics Captains Career Course at Fort Lee, Virginia.  She states that approximately 30 days before her graduation her orders to Fort Lewis were revoked and she was diverted to Germany.  She states that without further information of deployment status of her gaining unit, the orders issuing authority at Fort Lee, advised her to include her son on her orders and that if he did not travel with her to Germany, his concurrent travel orders would be null and void after 60 days and she would have to apply for command sponsorship in order to take him to Germany.  She states that 2 weeks before she left Fort Lee, she was informed of her assignment and her scheduled deployment in October 2005 and she immediately invoked her family care plan and made arrangements for the care of her son.  

3.  The applicant states that when she arrived in Germany she began preparing for her deployment to Iraq and she was briefed on her financial entitlements.  She states that the civilian employee in the finance section informed her that 

because her son remained in the United States, she would receive a cost of living allowance (COLA); an overseas housing allowance (OHA), at the without dependents rate; and a BAH for her son at his given address.  She states that in June 2006, she began the command sponsorship process to bring her son to Germany as quickly as possible after her redeployment and that she was briefed by her personnel management department that command sponsorship was not necessary for her son because he was on her original orders and he could join her as soon as her unit returned to Germany.  She states that she triple checked the information and received the same answer each time.  She states that she redeployed to Germany on 26 September 2006 and that her son arrived in Germany in October 2006.  She states that during in-processing she was told by a staff sergeant in the finance battalion that she was never eligible to receive BAH for her son because he was on her original orders to Germany.  She states that after a financial review, it was determined that she owed the Government $27,230.96 in over payment of BAH.  

4.  The applicant states that she was provided paperwork to file for a remission or cancellation of debt based on her circumstances, which she filed in January 2007.  Due to lost paperwork, untimeliness, and errors caused by the Defense Finance and Accounting Service (DFAS), she made several resubmissions.  She states that the commander of the finance battalion and her commander concurred that the Government was at fault for creating the debt; however, she received a denial of her request for remission or cancellation of indebtedness in July 2007.  She states that she was contacted by officials at the Department of the Army Human Resources Command (AHRC), Alexandria, VA and was told that she was lucky her remission or cancellation packet was even reviewed because she was an officer and they did not have to give her a reason for the denial.  The applicant states that she was led to believe that the decision to deny her request for remission was based on her September 2006 earnings statement which shows that she earned more than $10,000.00 a month.  She states that the earnings statement shows the benefits and entitlements she received while she was deployed in a hostile theater of operations and it does not depict the normal monthly earnings of an Army captain.  She states that she believes that the reviewer of her request for remission or cancellation of debt misunderstood or misinterpreted what was included on the statement corresponding with her deployment dates and the entitlements of every deployed Soldier.  She states that she continued researching her son's concurrent travel orders and she has since been informed that she should have applied for command sponsorship in order to bring her son to Germany as his orders expired 60 days after being issued and therefore, at worst, she would be in debt to the Government for only
2 months of BAH amounting to $2,562.00 instead of BAH for the entire year totaling $27,230.96.

5.  The applicant provides in support of her application, a Memorandum for Record from her commander, dated 27 December 2006, stating that he believes that it would be in the best interest to cancel the applicant's debt; a memorandum, dated 2 July 2007, from the AHRC notifying her commander that her request for remission or cancellation of indebtedness was disapproved; a memorandum to the AHRC Remission Board, dated 6 February 2007, from the Commander, 39th Finance Battalion recommending approval of the remission or cancellation of debt; Orders 214-001 dated 2 August 2005; page 1 of an internet printout of the Stars and Stripes dated 26 December 2007; Orders 
213-00235 dated 1 August 2005; Orders 237-00260 dated 25 August 2005; Orders 270-028 dated 27 September 2005; a Sworn Statement from a major dated 13 September 2007, attesting to the reason for her assignment to Germany; an Application for Remission or Cancellation of Indebtedness (DA Form 3508-R); copies of her Leave and Earnings Statements (LES) for the period 1-30 September 2006, 1-30 November 2006, and 1-31 July 2007; a copy of her Officer Record Brief; a Sworn Statement, dated 5 May 2007, regarding the events that she contends led to her debt; and a Pay Adjustment Authorization, dated 27 April 2007.

CONSIDERATION OF EVIDENCE:

1.  On 12 February 1998, the applicant enlisted in the Louisiana Army National Guard (LAARNG) for 8 years, in the pay grade of E-3.  On 4 February 1999, she was selected for enrollment as a cadet in the Reserve Officer Training Corps (ROTC) Program.

2.  On 17 December 2001, the applicant accepted an appointment as a second lieutenant (O-1) in the United States Army Reserve (USAR) and she was ordered for active duty for a 3-year commitment.  

3.  The applicant was promoted to the rank of first lieutenant (O-2) on 16 June 2002 and she was promoted to the rank of captain (O-3) on 1 May 2004.

4.  The applicant was attending the Army Logistics Management College at Fort Lee, Virginia, on 1 August 2005 when Orders 213-00235 were published ordering her to proceed on permanent change of station to Germany with a reporting date of 30 September 2005.  The orders show that she was authorized dependent travel and that she was authorized shipment of her household goods and her privately owned vehicle.



5.  On 2 August 2005, Orders 214-001 were published deploying her unit to Iraq in support of Operation Iraqi Freedom with an effective date of on or about
7 October 2005.

6.  On 25 August 2005, Orders 237-00260 were published changing her duty station in Germany and adding additional instructions which approved concurrent family travel to two bedroom Government housing provided she had sufficient remaining service to complete her overseas tour under the provisions of Army Regulation 55-46 prior to departure from the military installation.  The orders read that availability to private rental or Government quarters were subject to change by the gaining housing office upon arrival.  The orders list her son by name, relationship, date of birth and citizenship and the orders specify that Soldiers who obtain private rental housing after arriving in Germany will not be assigned Government-controlled housing for 1 year from the day that they sign a lease.

7.  The available records indicate that the applicant returned to Germany on 27 September 2006.

8.  On 18 December 2006, she submitted a DA Form 3508-R requesting remission or cancellation of indebtedness in the amount of $27,230.96 and she listed BAQ (basic allowance for quarters) as the category of indebtedness.  The DA Form 3508-R reflects that she was notified of the indebtedness on 15 December 2006 and that she indicated that injustice was the basis for her application.

9.  In a Memorandum for Record, dated 27 December 2006, the applicant's commanding officer stated that he believed it to be in the best interest to cancel the debt accumulated against her while she was deployed to Iraq.

10.  On 6 February 2007, the Commander, 39th Finance Battalion forwarded a memorandum to the Human Resources Command, Remission Board recommending approval of the applicant's debt in the amount of $24,548.70 (the uncollected portion of the debt), stating that the applicant believed she was receiving the correct rate for BAH for her child living in the United States.

11.  On 2 July 2007, the applicant's request for remission or cancellation of indebtedness was disapproved.  She was advised by the AHRC Deputy Director of Officer Personnel Management to contact the Finance and Accounting Office for proration of the debt and to apply to this Board if she believed that an injustice occurred surrounding the collection of the debt.


12.  In support of her application to this Board, the applicant submitted a Sworn Statement from a major, dated 13 September 2007, who contends that he worked at the AHRC from June 2004 through June 2006 and that during the summer of 2005, he assigned the applicant to Fort Lewis, Washington and later, due to mission requirements in support of the Global War on Terrorism, he had to 
change her assignment to Germany.  She also submits a Sworn Statement in which she reiterates the contentions that are contained in her application to this Board.

13.  The LES's that the applicant submitted in support of her application for the periods 1-30 September 2006 and 1-30 November 2006 show that she was receiving BAH at the with-dependents rate.  The remarks section of the LES's shows that she was receiving BAH based on the with-dependent rate in the 22315 zip code location.

14.  Army Regulation 37-104-4 (Military Pay and Allowances Policy) states, in pertinent part, that Soldiers are responsible for reviewing their LES and for the prompt and accurate reporting of changes in their personal circumstances that affect their entitlement to pay, or the distribution of their pay, to their commander and servicing finance office or defense military pay office.

15.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) states, in pertinent part, that Soldiers must make sure that their financial accounts are correct.  They must review their monthly LES and report errors or discrepancies to the command and the finance office or defense military pay office.  It also states that, in determining injustice or hardship, the following factors will be considered:  the Solder's awareness of policy and procedures; past or present military occupational specialty, rank, years of service, and prior experience; the Soldier's monthly income and expenses; and the Soldier's contribution to the indebtedness to the United States Army by not having the situation corrected.  An additional factor to be considered is whether there is evidence that the Soldier did not know, and could not have known, of the error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her debt in the amount of $27,230.96 in overpayment of BAH should be remitted or canceled or, in the alternative, only 2 months of BAH overpayments should be collected.

2.  She also contends that the concurrent travel orders pertaining to her son should be rescinded and that a command sponsorship dating from October 2006 should be approved.

3.  The applicant's contentions have been noted.  However, she has failed to show through the evidence submitted with her application or the evidence of record why she should be allowed to keep funds that she was not entitled to receive or why she should be allowed what amounted to a benefit that others are not afforded.

4.  Irrespective to whose fault it was that the applicant was overpaid, she was overpaid BAH at the with-dependent rate for a dependent who was believed to be in Germany and not in the United States.  The LES's show that she was receiving BAQ at the with-dependent rate and BAH based on the with-dependents rate for the zip code 22315 location.

5.  In accordance with the applicable regulation, it was her responsibility to review her LES.  The applicant provides no evidence to show that she never received her LES during the time she was being paid at the erroneous rate.  The commander's and/or personnel office's failure to catch the error did not relieve the applicant of her regulatory responsibility to review her LES.  Reasonable diligence on her part should have led her to question an incorrect zip code on her LES sooner.  

6.  The applicant has failed to show through the evidence submitted or the evidence of record that failure on the part of the Army to remit or cancel her debt to the government resulted in an error or injustice.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  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.



      _________XXX_____________
               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)                                         AR20080005296



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ABCMR Record of Proceedings (cont)                                         AR20080005296



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