IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110003872 


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 his records be corrected to show he applied for remission or cancellation of indebtedness and his request was approved.

2.  The applicant states, in effect, that when he was transferred from Alexandria, VA to St. Louis, MO in 2006, he continued to be paid Basic Allowance for Housing (BAH) at the Alexandria, VA rate.  This has resulted in him receiving no pay due for numerous months.  He contends the debt was caused by finance because they changed information without any documentation or authorization.

3.  The applicant provides pay records, military orders, and documents pertaining to his request for remission or cancellation of indebtedness.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests cancellation of the applicant's indebtedness or, in the alternative, forgiveness of the remainder of his debt.

2.  Counsel states the applicant was found not guilty by a general court-martial of larceny and fraud.  These allegations were raised in a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) investigation on travel fraud during periods of temporary duty (TDY) between 2006 and 2008.


3.  Counsel adds that the abrupt termination of his active duty status after his acquittal has caused an undue burden on the applicant.

4.  Counsel concludes that "the Government choose [sic] to take [the applicant] to a General Court Martial which found him not guilty of all charges and specifications.  It should follow on logically that if he is not guilty of committing larceny and fraud related to the travel claims the Government should not now be allowed a second bite at the apple through the administrative recoupment process."

5.  Counsel provides the applicant's record of trial.

CONSIDERATION OF EVIDENCE:

1.  On 8 August 2004, the applicant while on the Retired List as a sergeant first class (SFC) was ordered to active duty as a Retiree.  His military occupational specialty (MOS) is 42A (Human Resources Specialist).

2.  On 24 July 2008, the applicant's commander submitted a memorandum for record recommending that his request for remission or cancellation of indebtedness be disapproved and that he be given a year to pay the debt.  His commander added that the debt was incurred based on the applicant being paid BAH for the wrong zip code.  While this was not intentional on his part, he should have identified the error on his leave and earnings statement (LES) and had it corrected.

3.  On 11 March 2010, the applicant's new commander submitted a request to probate the applicant's debt based on financial hardship.  His commander stated that the debt was established based on a CID investigation.

4.  On 29 April 2010, the applicant was found not guilty of stealing TDY pay in excess of $500, stealing BAH in excess of $500 at the District of Columbia rate, stealing Family Separation Allowance in excess of $500, submitting false and fraudulent travel vouchers in excess of $500, and signing official records which were false and were then known by him to be false.

5.  On 21 May 2010, the applicant was honorably released from active duty and returned to the Retired List.

6.  In the processing of this case the Defense Finance and Accounting Service (DFAS) stated the applicant had a gross debt of $65,443.61 of which $23,002.61 

has been collected leaving a balance of $42,441.00.  The majority of the debt is due to an overpayment of BAH, and the rest is a travel debt.

7.  Department of Defense (DoD) Financial Management Regulation Volume 7B, Chapter 28, Recovery of erroneous payments of pay and allowances to or on behalf of a member or former member of the Uniformed Services, states that debts may be waived if recovery is determined to be against equity and good conscience.  Erroneous payments of travel and transportation allowances made prior to 28 December 1985 may not be waived.  Application for waiver must be received by the DoD within 3 years from the date the erroneous payment was discovered.  The member must apply for a refund of any amount collected within 2 years from the date of waiver approval.  A claim of the United States against a member or former member of the Uniformed Services, arising out of such erroneous payment, may be considered for waiver within 3 years from the date of discovery when collection of the erroneous payment would be against equity and good conscience and not in the best interest of the United States.  Generally, these criteria are met by a finding that: (1) the erroneous payment occurred through administrative error; and (2) there is no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the member or any other person having an interest in obtaining a waiver of the claim.  Any significant unexplained increase in pay that would require a reasonable person to inquire about the correctness of pay would preclude a waiver when the member fails to bring the matter to the attention of the appropriate officials.  

8.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members) states 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 finance office or defense military pay office.  It also states 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, and 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.  An additional factor to be considered is whether there is evidence the Soldier did not know, and could not have known, of the error.

DISCUSSION AND CONCLUSIONS:

1.  The facts and circumstances surrounding the applicant's debt is not a matter of record.

2.  However, DFAS has stated the majority of his debt was due to an overpayment of BAH.  The applicant's commander stated the debt was incurred based on the applicant being paid BAQ for the wrong zip code and concluded that while this was not intentional on his part, he should have identified the error on his LES and had it corrected.

3.  The applicant was found not guilty of larceny and fraud.  However, he was still a senior personnel sergeant who would be expected to realize he should have received less BAH in St. Louis, MO than he received in the Washington DC area.  As such, the applicant's commander's assessment appears to be correct.

4.  Therefore, the applicant does not meet the criteria of the DoD Financial Management Regulation Volume 7B, Chapter 28 (Any significant unexplained increase in pay that would require a reasonable person to inquire about the correctness of pay would preclude a waiver when the member fails to bring the matter to the attention of the appropriate officials) for debt remission (in this case, the applicant failed to bring the fact that his pay did not decrease when he moved to a lower cost of living area).

5.  The fact that the applicant was not found guilty of stealing, falsifying documents, or committing other criminal activities to obtain the overpayments has no bearing on whether he was overpaid.  Whether a Soldier is convicted of an offense or not has no bearing on the validity of a debt or whether it should be remitted.

6.  If the applicant's is having financial difficulties caused by repaying his debt, he should contact DFAS to establish a payment plan. 

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)                                         AR20110003872



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ABCMR Record of Proceedings (cont)                                         AR20110003872



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