IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120020228 


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 reconsideration of his earlier petition to the Board requesting remission/cancellation of a debt.  

2.  The applicant states the overpayment of Basic Allowance for Housing (BAH) that resulted in the debt in question was incurred through no fault of his and is attributable to negligence by the servicing finance office.  

3.  The applicant provides a power of attorney and a 7-page unsigned statement from his counsel in support of his request.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant’s request for remission/cancellation of the debt he incurred as a result of overpayment of BAH.  

2.  Counsel states this case involves a confusing and unique set of facts and circumstances and specific provisions of the Joint Federal Travel Regulation (JFTR) that are not commonly used.  Counsel claims the applicant acted reasonably in this matter at all times; the finance office made a critical mistake of failing to follow the regulation and requesting approval through the Secretarial Process; and there would have never been an overpayment had the finance office not been negligent as either approval would have been granted under JFTR paragraph U10412, or the applicant could have requested BAH under paragraph U10410 upon deploying.  Counsel claims this was never a case where a Soldier received an allowance that was not supported by regulation.  
3.  Counsel provides copies of the applicable JFTR paragraphs in support of the application.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120004856, on 24 April 2012.  

2.  The applicant remained serving on active duty, in the grade of sergeant first class (SFC)/E-7, on the date of this application to the Board.  

3.  During the original review of the case, the Board found no evidence indicating the applicant ever attempted to report the overpayment of BAH to his commander or local finance office for two years despite the fact the overpayment showed on his LES every month.  The Board further concluded that under the governing regulations, it was the applicant’s responsibility to review his monthly LESs and to report the overpayment and that he failed this responsibility by not reporting it until he was informed of the debt in November 2010.  

4.  Counsel provides a new argument that asserts there was both error and injustice related to the applicant’s debt and that the overpayment was the result of negligence on the part of local finance office officials and not the fault of the applicant.  Counsel argues that the Board’s decision that it was the applicant’s responsibility to report the overpayment is flawed in that any reasonable person after being specifically advised by finance officials that he could receive BAH at the with- dependent rate after his son’s return to the United States would not have been surprised to notice a change in his LES to reflect this information.  

5.  The record shows that in July 2009 while the applicant was assigned to Germany in a with-dependent status based on his son residing with him, he received orders to Fort Lewis, Washington with a report date in November 2008, with a follow-on deployment in December 2008.  Based on receipt of these orders, the applicant returned his son to the United States to reside in Dallas, Georgia.  The assignment was later cancelled.

6.  Subsequent to his son’s return to the United States, the applicant reported to the local finance office and reported the departure of his son.  

7.  During the original consideration of the case, a member of the Board staff contacted U. S. Army Human Resources Command (AHRC) to determine the reason for the applicant’s overpayment debt.  AHRC officials confirmed no Variable Housing Allowance (VHA) or Overseas Housing Allowance (OHA) changes were submitted in August 2008 when his son departed Germany and the applicant continued to receive BAH at the with-dependent rate until his departure from Germany in November 2010.  AHRC confirmed the applicant never followed up with the local finance office or informed them he continued to receive BAH at the dependent rate.  AHRC further indicated AHRC had partially remitted the applicant’s debt in the amount of $19,409.81 in the interest of equity even though there were no hardship or injustice grounds to do so.  

8.   Army Regulation 37-104-4 (Military Pay and Allowances) provides policy for entitlements and collection of pay and allowances for active duty Soldiers.  It states, in part, that Soldiers are responsible for reviewing their leave and earnings statements (LESs) and the prompt and accurate reporting of changes in their pay or the distribution of their pay to their commander and servicing finance office.  

9.  Paragraph U10412 of the JFTR provides guidance on dependent travel, advanced or delayed.  It provides provisions for gaining approval through the Secretarial Process if it is determined circumstances dictate to receive BAH based on either the dependent’s location or the old permanent duty station if circumstances permit.  

DISCUSSION AND CONCLUSIONS:

1.  The request of the applicant and his counsel that his request for remission/cancellation of his debt be reconsidered based on the new argument provided has been carefully considered.  However, there remains an insufficient evidentiary basis to support granting the requested relief.  

2.  The argument advanced by counsel that the applicant could have received approval to continue BAH at the with dependent rate based on his permanent duty station in Germany after his son departed for the United States through the Secretarial Process is not sufficiently compelling to amend the original Board decision in this case.  This argument might be more convincing had the applicant in fact moved on a permanent change of station and follow-on deployment.  However, once this reassignment was cancelled it changed the applicant’s status and he should have been aware that it would change the circumstances for his BAH payment.  

3.  The new argument advanced by counsel was considered in some form during the original review of the case and absent new evidence that the applicant actively pursued clarification of his dependent allowance status subsequent to the deletion of his reassignment and deployment, it appears the partial remission by AHRC was appropriate.  Therefore, there remains an insufficient evidentiary basis to support granting the 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 to amend the decision of the ABCMR set forth in Docket Number AR20120004856, dated 24 April 2012.  




      _______ _   _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)                                         AR20120020228



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120020228



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1