IN THE CASE OF:	  

		BOARD DATE:  24 April 2012

		DOCKET NUMBER:  AR20120004856 


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, remission or cancellation of all debt resulting from overpayment of Basic Allowance for Housing (BAH).

2.  The applicant requests that the Army Board for Correction of Military Records (ABCMR) investigate the decision of partial indebtedness in the amount of $19,409.81 rendered by the Chief, Operations Management Division, U.S. Army Human Resources Command (HRC), on 30 January 2012.

3.  The applicant states he was stationed in Germany and received permanent change of station (PCS) orders on 9 July 2008 to Fort Lewis, WA, with a reporting date of 10 November 2008.  His gaining unit was scheduled for deployment in December 2008.  Based on his PCS orders and anticipated deployment he sent his dependent son home to live in Dallas, GA, on 11 August 2008 so he could finish his junior and senior years at the same high school and prepare for college.  After his son's departure from Germany we went to the finance center in Heidelberg, Germany, and stopped the cost of living allowance (COLA) at the dependent rate and started BAH for his stateside address.

4.  He followed the instructions to change his overseas housing allowance (OHA) with dependents to without dependents and start variable housing allowance (VHA) for the GA zip code 30132 for his son.  His action was submitted and approved by the 208th Finance Office in Heidelberg, Germany.  The Finance Chief in Heidelberg, Germany, told him all the documents he submitted (DA Form 5960 (Authorization to Start, Stop, or Change BAH for Quarters and/or VHA) and DD Form 2367 (Individual OHA Report)), dated 8 August 2008, met the requirement for his dependent son to receive VHA at his stateside location and for him to receive OHA at the single rate in Germany.

5.  He states he believes the decision to find him partly responsible for the debt was based on him being a sergeant first class (SFC) and he used the phrase, "I assumed I presented all required documents."  He feels that the decision makers misinterpreted his statement.

6.  The applicant provides:

* memorandum requesting sponsorship, dated 14 March 2007
* Orders 191-12, dated 9 July 2008
* Carlson Wagonlit travel itinerary/invoice, dated 29 July 2008
* DD Form 1351-2 (Travel Voucher or Subvoucher), dated 11 August 2008
* DA Form 5960, dated 11 August 2008
* DD Form 2367, dated 11 August 2008
* Orders 301-02, dated 27 October 2008
* letter from the Darton College Office of the Registrar, dated 5 October 2010
* Account summary from Midland Mortgage Company, dated 26 October 2010
* Memorandum, Notification of Indebtedness, dated 27 October 2010
* Checklist for remission of debt application
* DA Form 2823 (Sworn Statement), dated 3 November 2010
* two memoranda regarding remission of debt, dated 23 November 2010 and 29 November 2010
* DA Form 3508 (Application for Remission or Cancelation of Indebtedness), dated 7 November 2011
* memorandum to the U.S. Army Human Resources Command (HRC), dated 7 November 2011
* memorandum from HRC, dated 30 January 2012
* two leave and earnings statements (LES)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 January 1988 and holds military occupational specialty 88M (Motor Transport Operator).  He served in a variety of stateside and overseas assignments.

2.  He served in Germany with Headquarters, U.S. Army Europe (USAREUR), from on or about May 2004 to on or about November 2010.  He is currently assigned to Fort Meade, MD, and holds the rank/grade of SFC/E-7.
3.  He provides a memorandum issued by U.S. Army Garrison, Heidelberg, Germany, dated 14 March 2007, wherein he was granted command sponsorship of his son M____ S____ effective 28 February 2007.

4.  He provides Orders 191-12 issued by U.S. Army Garrison Baden-Wuerttemberg, Germany, dated 9 July 2008.  These orders reassigned him on PCS to Fort Lewis, WA, with a reporting date of 10 November 2008.

5.  He provides an itinerary/invoice showing his son M____ S____ was scheduled to depart Germany from Frankfurt Airport on 11 August 2008 and arrive in Atlanta, GA.

6.  He provides a DA Form 1351-2, dated 11 August 2008, for dependent return.  This form shows his son departed Heidelberg, Germany, on 11 August 2008 and his final destination was Dallas, GA.

7.  He provides a DA Form 5960, dated 11 August 2008.  He initialed two blocks on this form wherein he certified he is or was willing to provide adequate support for his dependents and was aware that failure to do so could result in recoupment of his BAQ for any periods of nonsupport.  He further certified the dependency status of his primary dependents on whose behalf he was receiving BAQ had not changed so as to affect his entitlements thereto for that period.  This form further shows:

* he requested a recertification action
* his duty location was Headquarters, USAREUR
* his BAQ type was with dependents
* his marital dependency status was single with a dependent child
* the child was in his custody
* the dependent's current address was in Dallas, GA  30132
* the dependent was his son M____ S____ and his date of birth was 19 April 1990

8.  He provides a DD Form 2367, dated 11 August 2008, wherein he requested OHA.  He indicated:

* the effective date of his lease was 1 March 2006
* he paid his rent using local currency, the Euro
* his rent was 1325 Euros a month
* he was not entitled to a cost of living or OHA for dependents living elsewhere


* he paid separately for all utilities
* he was the only person residing in the rental
* he was submitting the request as a change of OHA action

9.  He provides Orders 301-02 issued by U.S. Army Garrison Baden-Wuerttemberg, Germany, dated 27 October 2008.  These orders revoked Orders 191-12, dated 9 July 2008.

10.  He provides a letter from the registrar's office of Darton College, dated 5 October 2010.  The letter verifies that his son M____ S____ was enrolled for the Fall 2010 semester for a total of 15 credit hours from 18 August 2010 to 8 December 2010.

11.  He provides his Midland Mortgage Company account summary, dated 26 October 2010.  This summary shows his principal balance was $120,671.30 and his monthly mortgage payment was $867.98.

12.  The original DFAS notification of indebtedness is not available for review with this case.  However, he provides a memorandum/notification of indebtedness issued by the 266th Financial Management Center, Kaiserslautern, Germany, dated 27 October 2010.  This notification informed the applicant's commander that the applicant was indebted to the U.S. Government for BAH overpayment in the amount of $38,819.63.  He checked a box indicating he wished to challenge the indebtedness and would contact his local finance office to explain why the debt was invalid.

13.  He provides a DA Form 2823, dated 3 November 2010, wherein he stated:

* he received PCS orders on 9 July 2008 to Fort Lewis, WA, with a reporting date of 10 November 2008 and the unit he was designated to be assigned to was deploying in December 2008
* based on his PCS orders and anticipated deployment, he sent his dependent son home to live in Dallas, GA, on 11 August 2008 so he could finish his junior and senior years at the same high school and prepare for college
* after his son's departure from Germany, he went to the finance center in Heidelberg, Germany, and stopped COLA at the dependent rate and started BAH for his stateside address
* he assumed he presented all the required documents to finance because his request was approved
* he was never contacted by finance to submit additional documents to validate his BAH entitlements
* he did not intentionally or knowingly accept entitlements thought to be erroneous
* he provided sufficient care for his son by paying the mortgage in the amount of $1,100.00 from August 2008 to October 2010, to include electricity, water, gas, and other related expenses for him
* he did not profit from the funds designated for his living expenses and requested complete exoneration and forgiveness of debt for not knowing the action needed further attention

14.  He provides a memorandum, dated 23 November 2010, wherein the commander of Headquarters and Headquarters Company, Headquarters USAREUR, requested remission of his debt in the amount of $38,819.36 for overpayment of BAH.

15.  He provides a memorandum, dated 29 November 2010, wherein he requested through the commander of V Corps Special Troops Battalion, Heidelberg, to the commander of the 266th Finance Company, that his debt for overpayment of BAH be remitted.  The commander of V Corps Special Troops Battalion concurred with his request on 6 December 2010.

16.  He provides a DA Form 3508 wherein he stated his two oldest children were in college, one living in a dormitory and the other off campus.  However, he was seeking other living arrangements for his oldest son because of this expense.  His youngest child resided with her mother.  He provided over 75 percent of his child's mother's living expenses, to include the mortgage.  The form further shows:

* he was divorced but he had three children of the ages 15, 18, and 20 who did not live with him
* he was indebted for $38,819.63 for BAH overpayment
* his total monthly income was $5,827.78 and his total monthly expense was $4,703.44
* he had $1,600.00 in his checking account, $400.00 in his savings account, and $8,000.00 in bonds
* his house was valued at $147,000.00 and he had declared bankruptcy in 1997
* his application was based on hardship and injustice
* he signed this form on 3 November 2010, his commander signed it on 24 November 2010, and the Director of the Military Pay Office signed it on 7 November 2011, indicating that all the necessary paperwork had been attached

17.  He provides two LES's which, after entitlements, deductions, and allotments, show:

* his end of month pay was $1497.51 for the period 1-30 November 2010
* his end of month pay was $834.57 for the period 1-31 October 2011

18.  He provides a memorandum issued by the director of the Defense Military Pay Office at Fort Meade, MD, on 7 November 2011.  This memorandum was sent to HRC with the recommendation that the $38,918.63 in debt incurred by the applicant be cancelled or remitted as repaying the debt would create a financial hardship.

19.  On 30 January 2012, HRC rendered a decision on his application for remission.  The Chief of the Operations Management Division stated:

* the application for remission or cancelation of indebtedness in the amount of $38,819.63 had been reviewed in accordance with Army Regulation 600-4 (Remission or Cancellation of Indebtedness)
* the application was approved in the partial amount of $19,409.81
* the review determined no grounds existed to remit or cancel the remaining debt based on hardship or injustice

20.  On 12 April 2012 during the processing of this case, HRC was contacted by telephone in an effort to determine how or why the applicant received an overpayment of BAH.  An official in the HRC Operations Management Division stated, in effect:

* the VHA and OHA requests he submitted to finance in August 2008 were not properly processed and he continued to receive BHA at the dependent rate until he left Germany in November 2010
* he did not follow up with his local finance office or inform the office that he continued to receive BAH at the dependent rate
* HRC approved his request to remit or cancel his BAH debt in the partial amount of $19,409.81 even though there were no grounds to cancel or remit his debt on the basis of hardship or injustice
* the partial approval was granted only as a matter of equity

21.  Army Regulation 37-104-4 (Military Pay and Allowances Policy) provides policies for entitlements and collections of pay and allowances for active duty Soldiers.  This regulation provides that the battalion S-1 will assist Soldiers in preparing pay-related documents, forward pay-related documents to the finance office (FO)/defense military pay office (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 electronic military personnel office accountability report is accomplished monthly.  This regulation also provides that Soldiers are responsible for reviewing their LES's 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.

22.  Army Regulation 600-4 provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army.  This regulation provides that the commander is responsible for helping the Soldier to resolve personal debts, including errors in pay.  It states 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.

23.  Army Regulation 600-4 also states that Soldiers must make sure their financial accounts are correct.  They must review their monthly LES's and report errors or discrepancies to the command and FO/DMPO.  The most common areas for errors in the LES are leave balances and receipt of BAH, VHA, or COLA 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, 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.  Paragraph 1-13 also provides additional factors for consideration in determining injustice.  It provides 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 his BAH debt was unjustly imposed upon him and the supporting documents he provided were carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record shows he returned his dependent child to the United States in August 2008.  He reported his change in dependency status; however, he continued to receive BAH at the "with dependents" rate.  As a senior noncommissioned officer, he knew or should have known that he was being overpaid by reviewing his monthly LES's.  He had a responsibility to report the error or discrepancy in his BAH rate to his commander or the FO/DMPO as required by the governing Army regulation when the BAH rate on his LES did not change to the single rate.  He did not do sp.

3.  Notwithstanding the fact that the incorrect dependency rate for his BAH entitlement appeared on his monthly LES, he also failed to initiate administrative action to correct the error for over 2 years.  The initiation of corrective action at any time during this period would have helped mitigate his indebtedness.  However, he did not initiate action for the remission of debt until November 2010, after he received official notice through his commander.

4.  The governing regulations clearly state that Soldiers are responsible for reviewing their LES's each month and for the prompt and accurate reporting of changes or errors that affect their entitlement to or distribution of pay.

5.  In view of the applicant's rank, years of service, and military experience, it is reasonable to conclude that his inattentiveness to correct the error shown on his LES's for over 2 years directly contributed to his current indebtedness to the U.S. Government.

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

7.  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 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)                                         AR20120004856



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ABCMR Record of Proceedings (cont)                                         AR20120004856



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