IN THE CASE OF:	  

		BOARD DATE:	    16 June 2011

		DOCKET NUMBER:  AR20100022844 


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 a waiver of recoupment of debt resulting from overpayment of basic allowance for housing (BAH).

2.  The applicant states, in effect, she had no dependents after her divorce in October 2006 but she continued to receive BAH at the "with dependents" rate.  She requested her stepchild be removed from the Defense Enrollment Eligibility Reporting System (DEERS) but she was never removed because she was erroneously inputted as her biological daughter.  She continued to receive BAH at the incorrect rate from October 2006 through May 2009.  When she realized the error, she reported it to DEERS and the servicing finance office but she was told she had incurred a debt and she would have to repay it.

3.  The applicant provides:

* a letter from the U.S. Army Human Resources Command, Alexandria, VA (HRC-ALX)
* a DD Form 1172 (Application for Uniformed Services Identification Card - DEERS Enrollment
* a DD Form 93-E (Record of Emergency Data)
* an SGLV-8286 (E) (Servicemembers' Group Life Insurance Election and Certificate)
* a DA Form 3508 (Application for Remission or Cancellation of Indebtedness)
* 
a letter from the Defense Military Pay Office (DMPO), Fort Sill, OK
* various letters of indebtedness
* a DD Form 139 (Pay Adjustment Authorization)
* her Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statement (LES) for the period 1-31 August 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Regular Army first sergeant (1SG)/E-8 who initially entered active duty on 5 October 1989.  She held military occupational specialty (MOS) 92Y (Unit Supply Specialist) and she served in various stateside and/or overseas assignments. 

2.  She was promoted to master sergeant/E-8 on 1 August 2007 and she completed the 1SG Course on 9 October 2007.  She served as the unit 1SG of
C Battery, 95th Adjutant General Battalion, Fort Sill, from April 2007 until her retirement in October 2010.

3.  On 6 July 2009, the Fort Sill DMPO initiated a pay adjustment authorization against the applicant.  The DD Form 139 states that she was divorced on
17 October 2006 with no dependents but continued to receive BAH at the "with dependents" rate for a stepdaughter that she did not have legal custody of, for the period 18 October 2006 through 31 May 2009.  She owed the difference from the "with dependents" BAH and the "without dependents" BAH, at the time a total debt of $6,825.82 as follows:

* Calendar Year 2006 BAH		$425.82
* Calendar Year 2007 BAH		$2,839.00
* Calendar Year 2008 BAH		$2,196.00
* Calendar Year 2009 BAH		$1,365.00

4.  On 20 August 2009, by memorandum the Fort Sill DMPO notified the applicant that she was indebted to the U.S. Government.  The applicant acknowledged receipt of the notice of indebtedness and elected to submit an application for remission or cancellation of indebtedness.

5.  On 10 September 2009, her immediate and intermediate commanders reviewed her application for remission or cancellation of indebtedness and recommended approval.  The intermediate commander opined that the debt was not her fault and that it should be forgiven.  In the alternate, he recommended the debt be prorated over 12 months.

6.  On 23 October 2009, by letter, an HRC-ALX official notified the applicant that her application for remission or cancellation of debt was reviewed in accordance with Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members) but her application was disapproved.

7.  She was honorably retired on 31 October 2010 and placed on the retired list in her retired rank/grade of 1SG/E-8 on 1 November 2010.

8.  She submitted:

* a DA Form 1172, dated 1 June 2010, that listed DMJ as her dependent child
* a DD Form 93, dated 26 May 2010, that listed DMJ as her daughter
* an SGLV certificate, dated 26 May 2010
* her 1-31 August 2009 LES showing recoupment of BAH

9.  Army Regulation 37-104-4 (Military Pay and Allowances Policy) provides policies for entitlements and collections of pay and allowance for active duty Soldiers.  This Army regulation provides that the battalion S1 will assist Soldiers in preparing pay-related documents, forward pay-related documents to the Finance Office/DMPO (FO/DMPO) on a daily basis, respond to Soldiers' pay inquiries when the required information is available, and ensure that verification of the Unit Commander's Finance Report (UCFR) and eMILPO Accountability Report is accomplished monthly.  This regulation also provides 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 FO/DMPO.

10.  Army Regulation 600-4 provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army.  The regulation provides that the commander is responsible for helping the Soldier to resolve personal debts, including errors in pay.  It states that the monthly review of the UCFR will highlight possible erroneous payments.  In addition, the Battalion Personnel Administration Center (PAC), servicing Personnel Service Battalion (PSB), and FO/DMPO will help commanders to resolve indebtedness caused by administrative transactions.  This regulation further states that it is incumbent upon commanders, battalion PAC, PSB, and FO/DMPO involved in identifying indebtedness and processing requests for remission to expedite the process to minimize possible out-of-service debt.

11.  Army Regulation 600-4 also states that Soldiers must make sure their financial accounts are correct.  They must review their monthly LES and report errors or discrepancies to the command and the FO/DMPO.  It continues that the most common areas for errors in the LES are leave balances and receipt of basic allowance for quarter, variable housing allowance, or the cost of living allowance at the "with dependents" rate when it should be at the "without dependents" rate.  Paragraph 1-12 provides that in determining injustice or hardship, the following factors will be considered:  the Soldier's awareness of policy and procedures; past or present MOS, rank, years of service, prior experience; the Soldier's monthly income and expenses; and the Soldier's contribution to the indebtedness to the U.S. Army by not having the situation corrected.  Paragraph 1-13 also provides additional factors for consideration in determining injustice.  It provides, in pertinent part, that the application must contain evidence that the applicant did not know, and could not have known, of the error; or the applicant inquired of a proper authority and he/she was told that the payment was correct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that her BAH debt was unjustly imposed upon her and the supporting documents she provided were carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record shows she was divorced in October 2006.  As a senior noncommissioned officer, she had a responsibility to report the change in her dependency status immediately following her divorce.  The dependency status used to determine her BAH entitlement would have appeared on each monthly LES she received.  However, there is no indication that she reported the error or discrepancy in the BAH dependency to her commander or the FO/DMPO, as required by the governing Army regulation.

3.  The evidence of record also shows that the applicant's principal duty shortly after her divorce was that of a unit 1SG.  This is a position which indicates the applicant possessed special knowledge and expertise in the field of personnel and administration and she was responsible for advising the battalion adjutant or S-1, her unit commander, and assigned Soldiers in personnel and administrative matters.

4.  Notwithstanding the fact that the incorrect dependency for her BAH entitlement appeared on her monthly DFAS Military LES, the evidence of record 

shows, and she in effect acknowledges, that she failed to initiate administrative action to correct the error for nearly 3 years.  The initiation of corrective action by the applicant at any time during this time period would have helped mitigate her indebtedness.  She did not initiate action for the remission of debt until September 2009.

5.  The governing Army regulations clearly state that Soldiers are responsible for reviewing their DFAS Military LES each month 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 FO/DMPO.

6.  In view of the applicant's MOS and inherent major duties, her rank, years of service and military experience, it is reasonable to conclude that her inattentiveness to correct the error shown on her DFAS Military LES for nearly
3 years directly contributed to her current indebtedness to the U.S. Government. 

7.  The evidence of this case shows that the applicant received BAH at a higher rate based on an incorrect dependency status which appeared each month on her DFAS Military LES for the applicant to review.  The evidence of record shows she failed to take corrective action for nearly 3 years after her divorce.

8.  There is no evidence of record which shows she did not know, and could not have known, of the error; or that she inquired of a proper authority and she was told that the payment was correct.  The fact that she is indebted to the U.S. Government for money that she received because of an overpayment of her allowances, while unfortunate, does not constitute an injustice to her.  She had the benefit of the money resulting from the overpayment.

9.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100022844



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100022844



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1