IN THE CASE OF:	  

		BOARD DATE:  20 March 2012

		DOCKET NUMBER:  AR20110011765 


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 $8,169.60 due to receiving an exception to policy to reside off post.  

2.  He states he submitted a remission packet to the finance office at Fort Richardson.  All the documents he put in the packet were missing at the time they were reviewed by the board.  Another Soldier’s paperwork was put into his packet.  He will include all the missing documents for the board to review again.  

3.  He provides memoranda from his battalion and company commanders.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 June 2005.

2.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in Iraq from 4 October 2006 to 21 October 2007 and Afghanistan from 16 February 2009 to 2 March 2010.  He was discharged on 15 June 2011 at the completion of required active service.  On the following day, he was transferred to a Reserve unit. 

3.  His service record does not include his DA Form 3508-R (Application for Remission or Cancellation of Indebtedness).  


4. In a 27 February 2009 memorandum, the commanding officer of the U.S. Army Garrison Fort Richardson informed the applicant that his request for an exception to policy to reside off post was approved.  The commanding officer cited Army Regulation 420-1 (Army Facilities Management), Chapter 3-18k(5)(e)(2) which states "Mandatory assignment will not be made if – Such assignment would cause extreme hardship."  The commanding officer stated "Since the applicant purchased a home prior to his divorce, an assignment to barracks would cause financial hardship."  However, the memorandum makes no reference to the applicant's entitlement to BAH.  

5.  On 5 May 2011, the Chief, Special Actions Branch, HRC, Fort Knox, stated the applicant's application for remission or cancellation of indebtedness in the amount of $8,169.60 was reviewed in accordance with Army Regulation 600-4 (Remission or Cancellation of Indebtedness) and was disapproved.  The review determined no grounds existed to remit or cancel the debt based on hardship or injustice.  

6.  On 25 May 2011, his company commander submitted a memorandum to the Defense Accounting Office (DAO)/Finance and Accounting Office (FAO) recommending approval of cancellation of indebtedness for the applicant due to financial hardship the debt imposed on the applicant.  The company commander stated: 

   a.  the applicant was an asset to the command and the U.S. Army, completed a 14-month combat deployment in support of Operation Iraqi Freedom, completed a 13-month combat deployment in support of Operation Enduring Freedom, and earned the Combat Action Badge.
   
   b.  the applicant's financial issues were partly due to his volunteering for early deployment to Operation Iraqi Freedom when no one else in the company would.  
   
   c.  the applicant should not be penalized because of administrative errors that he was not present to correct.  
   
   d.  the applicant had an exception to policy letter from the post commander which authorized him off post housing due to hardship and he was authorized married rate for basic allowance for housing (BAH) and cost of living allowance (COLA) since it would be a hardship of pay.  
   
   e.  the applicant had purchased a home prior to his divorce and the Fort Richardson Finance office agreed to these terms in 2007.

7.  On 25 May 2011, the applicant's battalion commander also submitted a memorandum to the DAO/FAO recommending approval of cancellation of indebtedness for the applicant.  

8.  On 26 May 2011, his company commander submitted a request to the 
U.S. Army Human Resources Command (HRC), Fort Knox, for remission or cancellation of indebtedness for the applicant.  The company commander stated the applicant was notified of the indebtedness in March 2011 and he signed the DA Form 3508-R in March 2011.  The company commander stated the memorandum signed by the applicant's commander was dated 24 March 2011.  

9.  On 26 May 2011, his battalion commander submitted a memorandum to HRC, Fort Knox, for remission or cancellation of indebtedness for the applicant.  The battalion commander stated the debt was due to an overpayment of BAH and COLA.  

10.  On 30 September 2011, an advisory opinion was obtained from the Office of the Deputy Chief of Staff G-1 and this office denied relief.  This office opined:

	a.  it was the applicant's responsibility to promptly notify the appropriate authorities of any changes in dependency status, such as a divorce.  

   b.  The Joint Federal Travel Regulation clearly states the effective stop date with respect to terminating entitlements to BAH at the with dependent rate.  
   
   c.  No documentation was provided to demonstrate the applicant made any attempts to notify or inform his local finance office of a dependency status change.

11.  A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments.  However, he did not respond.  

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

13.  Army Regulation 420-1 provides policies and responsibilities for conduct and management of facilities engineering, housing, fire and emergency services, and environmental support.  Subparagraph 3-18k(5)(e)2 states mandatory assignment will not be made if such assignment would cause extreme hardship.  


14.  Department of Defense Financial Management Regulation 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.

15.  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 overseas housing allowance.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention regarding documents were missing from the packet he submitted to the finance office at Fort Richardson.  

2.  Although the applicant did not provide copies of his Leave and Earning Statements 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 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.  As stated in the advisory opinion, it was the applicant's responsibility to promptly notify the appropriate authorities of any changes in dependency status, such as a divorce.  However, no documentation was provided to demonstrate the applicant made any attempts to notify or inform his local office of a dependency status change.

5.  The applicant's chain of command recommended approval of cancellation of his indebtedness due a financial hardship would be imposed on him.  However, this evidence alone is insufficient as a basis to grant the requested relief.  


6.  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)                                         AR20110011765





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110011765



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1