IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100016673 


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 his debt to the Government in the amount of $19,452.97.

2.  The applicant states, in effect, that his debt is for overpayment of basic allowance for housing (BAH) from January 2007 and December 2008.  When he moved into government housing finance failed to stop his BAH and he did not discover there was a problem until he moved to off-post housing and applied for an Overseas Housing Allowance (OHA) in December 2008.  He further states that he realized that he was being paid BAH but he assumed it was being deducted by the housing office to pay for his Government housing.  He also states had he known he was being overpaid he would have safeguarded the funds until the error was corrected.  He also states it would be unjust for him to repay the funds because the Army's policy was unclear to him and repaying the funds will cause a hardship for his family. 

3.  The applicant provides:

* A memorandum from the Human Resources Command – Alexandria (HRC-ALEX) disapproving his request for Remission or Cancellation of Indebtedness
* DA Form 3508 (Remission or Cancellation of Indebtedness) and supporting documents which includes a sworn statement and endorsement from his chain of command
* A copy of his leave and earnings statement (LES) ending 31 May 2009
* A copy of his election statement indicating he desired to request remission or cancellation of the indebtedness

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in the pay grade of E-4 on 13 March 2000 for a period of 4 years, training as a personnel administrative specialist, a cash enlistment bonus of $8,000, and participation in the Loan Repayment Program.

2.  He completed his training and he was promoted to the pay grade of E-5 on
1 June 2002.  While serving as a personnel sergeant he reenlisted for a period of 4 years on 2 July 2003.

3.  On 26 May 2005, he was honorably discharged for the purpose of accepting a warrant officer appointment.  On 27 May 2005, he was appointed as a United States Army Reserve Warrant Officer One (WO1) in the aviation career management field with a concurrent call to active duty.  He completed his aviation training and was transferred to an aviation company in Germany.  He was promoted to the rank of Chief Warrant Officer Two (CW2) on 27 May 2007.

4.  On 28 May 2009, the applicant submitted his Application for Cancellation or Remission of Indebtedness through his chain of command.  The applicant's company commander recommended that his request be denied, he needed to accept responsibility for his finances because he should have been aware he was receiving an extra $900.00 pay each month.

5.  The applicant’s battalion commander also recommended that his request be denied and that the monies be repaid over a period of 2 years.

6.  On 22 January 2010, HRC-ALEX disapproved the applicant’s application in the amount of $19,452.97 and advised him to contact the Finance and Accounting Officer for proration of the debt.

7.  Army Regulation 600-4 serves as the authority for the remission or cancellation of indebtedness.  It provides, in pertinent part, that the objective of remission or cancellation is to remit or cancel debts that are considered to be unjust.

8.  A review of the applicant’s official records shows that prior to being appointed as an aviator warrant officer, the applicant served as a personnel sergeant responsible for the daily administration and operation of a personnel administration center servicing over 523 Soldiers and civilians in matters related to finance and personnel actions as well as many other types of actions.

9.  A review of the LES provided by the applicant shows that the LES is divided up into four major parts/sections which consist of:

* Entitlements
* Deductions
* Allotments
* Summary

10.  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.

11.  BAH is based on geographic duty location, pay grade, and dependency status.  The intent of BAH is to provide uniformed service members with permanent duty within the 50 United States accurate and equitable housing compensation based on housing costs in local civilian housing markets, and is payable when government quarters are not provided.  A uniformed service member stationed overseas, including U.S. protectorates, who is not furnished government housing, is eligible for OHA.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s claim that he was unaware he was being overpaid BAH is unfortunate it is his responsibility to know how much he is being paid and what is being deducted from his pay.  

2.  Although the applicant did not provide copies of his LESs for the period which he was being overpaid BAH there appears to be no basis to presume this is an invalid debt.  

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

4.  It is also noted the applicant was not able to convince his chain of command that payment of the debt was unjust and/or would cause a financial hardship on him.  Accordingly, it is reasonable to presume that given his prior background in personnel he would have knowledge of such matters and would know the correct procedures for resolving such issues when they occur.

5.  Therefore, in the absence of evidence to show that his debt was improperly calculated, there appears to be no basis to remit or cancel a valid debt.

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)                                         AR20100016673



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ABCMR Record of Proceedings (cont)                                         AR20100016673



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