IN THE CASE OF:
BOARD DATE: 12 January 2010
DOCKET NUMBER: AR20090002774
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, that her debt to the Army be cancelled or remitted and that she be paid all monies collected to date.
2. The applicant states that when she was in the service she went several times to change her military status from married and living off post to single and living off post. She continues to state that they took her divorce decree and she was assured that it would be changed; however, they did not change it. She had to take her decree to her commander and still it was not changed.
3. The applicant provides copies of two notifications from the Department of the Treasury, a copy of her leave and earnings statement (LES) ending 11 June 2006, a copy of a DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA)), dated 11 February 2005, and a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant was single when she enlisted in the Regular Army on 23 August 2001 for a period of 6 years, training as an operating room specialist, and assignment to Tripler Army Medical Center (TAMC) in Hawaii.
2. She completed her training and was assigned to TAMC. She was advanced to the pay grade of E-4 on 1 March 2003.
3. The DA Form 5960 provided by the applicant indicates that she submitted a change to her BAQ and VHA on 11 February 2005 indicating that she was divorced on 26 August 2004.
4. On 10 March 2006, a physical evaluation board determined that the applicant was physically unfit and recommended that she be separated with severance pay and a 10-percent disability rating.
5. On 11 June 2006, she was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability with severance pay. She had served 4 years, 9 months, and 19 days of total active service and was paid $19,359.00 in disability severance pay. Her LES ending 11 June 2006 shows that she was single at the time.
6. On 25 April 2008 and 16 May 2008, the Department of the Treasury notified the applicant that all or part of her Federal payment had been applied to a debt she owed. One check was paid to the Army and Air Force Exchange Service in the amount of $106.89 and two payments had been made to the Defense Finance and Accounting Service (DFAS) in the amounts of $1517.11 and $600.00, respectively.
7. In the processing of this case a staff member contacted officials at DFAS who indicated that the debt was for a bachelor allowance for housing (BAH) overpayment that she was receiving after she was divorced. Additionally, she was notified of the debts by letter on 10 November 2006 and there is no record of her submitting a request for a waiver of or the remission of the debt.
8. A review of the applicants official records failed to reveal a copy of her divorce decree. Additionally, the records do not contain and the applicant has not provided a copy of the original debt notification.
9. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) provides the instructions for submitting and processing applications for remission or cancellation of indebtedness. Applications must be based on injustice, hardship, or both. The objectives of remission or cancellation of debt are to remit or cancel debts to the Army that are considered to be unjust or to end hardship or undue suffering.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that her debt should be cancelled or remitted has been noted and appears to lack merit. Although she has not provided a copy of the original debt notification or her divorce decree, she has submitted a copy of her DA Form 5960 which shows that she submitted a request to change her BAH and VHA on 11 February 2005 based on her divorce of 26 August 2004, approximately 5 months after the fact, which in itself would have created a debt by that time.
2. While it cannot be determined what the amount of her debt was from the available evidence, the applicant has provided no evidence to show that she has attempted to resolve the debt with DFAS officials, nor has she provided evidence to show that the debt is in error or is unjust.
3. The applicant contends that she should not have to repay the debt because she made several attempts to effect the change. However, she has failed to provide sufficiently convincing evidence to show such and she has failed to explain why she believes she was entitled to funds that she was not eligible to receive after she became divorced.
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 this requirement.
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.
___________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) AR20090002774
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ABCMR Record of Proceedings (cont) AR20090002774
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