IN THE CASE OF:	  

		BOARD DATE:	  12 November 2013


		DOCKET NUMBER:  AR20130005122 


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 that her debt incurred due to receiving Basic Allowance for Housing (BAH)/Variable Housing Allowance (VHA) and Cost of Living Allowance (COLA) be forgiven and reimbursement of any funds collected as a result of this correction.

2.  The applicant states orders were issued on 9 August 2012, 2 years after the effective date of orders that authorized her BAH, which caused her to incur a debt of nearly $27,000.00.

   a.  The debt was based on transfer orders that were published in October 2010, but not processed until August 2012, resulting in a debt based on overpayment of BHA/VHA and COLA.

   b.  She was on medical leave and did not perform duty from 5 December 2009 until she retired from active duty on 23 December 2012.

   c.  She attempted to resolve the issue of her debt with officers in her chain of command beginning 6 September 2012 and she was assured her request was complete and being processed.  However, she later learned that her request was not processed.  Despite resubmitting her application and obtaining the assistance of her Congressman, a collection action for a debt was initiated against her by the Defense Finance and Accounting Service (DFAS) prior to her retirement. 

   d.  She adds that the debt reflects a grave injustice and has created a significant financial hardship on her and her family. 

3.  The applicant provides copies of her:

* notification of and request for remission of debt
* Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) proceedings and medical records
* sworn statements
* transfer orders
* separation documents and retirement orders

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the Army National Guard of the United States (ARNGUS) and Massachusetts Army National Guard (MAARNG) on 24 August 1982 in the rank of second lieutenant.

2.  She entered active duty in the Active Guard Reserve (AGR) program on
7 January 1997 and was promoted to lieutenant colonel (LTC) on 15 September 2006 in the Quartermaster Corps.

3.  National Guard Bureau (NBG), Arlington, VA, memorandum, dated 31 July 2009, subject:  Retention Beyond Mandatory Removal Date (MRD), shows the applicant was retained in an active status and on active duty beyond her MRD of 31 August 2010 until 30 September 2011 for the purpose of achieving 20 years active service for retirement.

4.  Joint Force Headquarters (JFHQ), Massachusetts National Guard, Office of the Adjutant General, Milford, MA, Orders 280-013, dated 7 October 2010, shows the applicant was on AGR status and assigned to Headquarters and Headquarters Detachment (HHD), JFHQ, Massachusetts National Guard, Milford, MA, effective 30 September 2010, for an indefinite period.

   a.  The "Additional instructions" show, in pertinent part:
 
* Dependent travel and shipment/storage of household goods are not authorized (this is a low cost/no cost move)
* Current residence is within established commuting distance to the new duty station


   b.  The "For ARNG/Army Use" section shows, in pertinent part:

* Position:  Deputy G-4
* Home of Record (HOR):  Plymouth, MA  02360

5.  Office of the Assistant Secretary (Manpower and Reserve Affairs) (ASA (M&RA)), Washington, DC, memorandum, dated 21 June 2012, subject:  Request for Ratification of Service and Retention Beyond MRD, shows the
ASA (M&RA), approved, as exceptions to policies, the applicant's retention in the Ready Reserve from 1 October 2011 until 31 October 2012 and retention beyond age 60 from 1 May 2012 until 31 October 2012, or for not more than 30 days after completion of physical disability evaluation, whichever occurs first, and deemed such periods to be creditable service.

6.  JFHQ, Massachusetts National Guard, Office of the Adjutant General, Milford, MA, Orders 216-062, dated 3 August 2012, revoked Orders 161-066, dated       10 June 2011, that directed the applicant's retirement from active duty effective 30 September 2011.

7.  JFHQ, Massachusetts National Guard, Milford, MA, Orders 205-066, dated 23 July 2012, shows the applicant was ordered to Full-Time National Guard Duty in an AGR status and she was assigned to HHD, JFHQ, Massachusetts National Guard, Milford, MA, effective 1 October 2011 through 31 October 2012.  The additional instructions of the orders show:

* Your AGR orders are continued solely for the purposes of the completion of physical disability evaluation
* Service member authorized rations not available

8.  JFHQ, Massachusetts National Guard, Office of the Adjutant General, Milford, MA, Orders 275-106, dated 1 October 2012, shows the applicant was released from assignment and duty based on permanent physical disability on                 23 December 2012 and placed on the retired list effective 24 December 2012.

9.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 7 January 1997, was honorably retired from active duty on 23 December 2012 based on permanent (enhanced) disability, and transferred to the USAR Control Group (Retired).  

10.  In support of her application, the applicant provides the following documents:

   a.  U.S. Army Medical Department Activity, West Point, NY, memorandum, dated 28 October 2009, subject:  Notice of Physical Disability Processing, and DA Form 3349 (Physical Profile), dated 26 October 2009, that show the applicant was placed under the medical administrative control of Kelly Army Community Hospital (KACH) for processing through the physical disability evaluation system (PDES).  It also shows her commander was advised, "This does not by any means release this Soldier from their assigned duties and responsibility to your unit."

   b.  JFHQ, Massachusetts National Guard, Office of the Adjutant General, Milford, MA, Orders 245-137, dated 2 September 2009, that revoked Orders 231-135, dated 19 August 2009, which directed the applicant to proceed on 19 days of temporary duty at Camp Edwards, MA, effective 9 September 2009.

	c.  Information that shows the applicant had medical appointments at KACH on 21 June, 8 and 9 August 2011, and 21 and 22 March 2012.

   d.  Documents relating to the determination for assigning or attaching the applicant to the Warrior Transition Unit (WTU) that shows the following:

    	(1)  Doctor Denise S. C----, Walter Reed Army Medical Center; Captain Robert E. T---, 26th Maneuver Enhancement Brigade; and the Commander, 
HHD, Massachusetts National Guard, recommended the applicant be assigned to the WTU effective 31 December 2010.

    	(2)  on an unspecified date, Colonel Beverly C. L---, Commander of the Medical Treatment Facility, indicated that the applicant was not accepted to the WTU as she did not need intensive case management and command and control because she was progressing well.

   e.  Documents that show, as of 8 August 2012, the applicant had been hospitalized/on convalescent leave since 5 December 2009, she had non-rated time for the period 15 November 2009 to 2 August 2012, and she did not have enough qualifying time for an Officer Evaluation Report.
   
   f. 	An email message, dated 10 August 2012, from the PEB Liaison Officer, Veterans Affairs Hudson Valley Healthcare System, Montrose, NY, that shows the applicant was informed that, even though the final Narrative Summary of her MEB was written on 4 June 2012, her case was initiated/received in 2009 and, therefore, considered to be a legacy case.

   g.  A DA Form 199 (Informal PEB Proceedings) that shows an informal PEB was convened on 15 August 2012, the applicant's medical conditions were determined to be unfitting, and she was awarded a combined rating of 40%.  The disability disposition was based on injury or disease received in the line of duty as a direct result of armed conflict.

   h.  JFHQ, Massachusetts National Guard, Office of the Adjutant General, Milford, MA, memorandum, dated 9 August 2012, that shows the applicant was notified of a debt incurred due to receiving incorrect BAH and COLA for housing area code 01867 based on Order Number 280-013, dated 7 October 2010, effective 30 September 2010.  It also shows she should have been receiving BAH and COLA for housing area code 01757 and that the approximate debt was $26,526.00.  She was further informed of the options available for her to consider in resolving the debt.

   i.  A memorandum, dated 17 August 2012, that  shows the applicant requested revocation of Order 280-013, dated 7 October 2010, based on:

* the order never being "top loaded" until 9 August 2012
* she had not performed duty since 5 December 2009
* The PEB found her unfit for duty by reason of permanent physical disability
* her retirement effective date of (sic) 31 October 2012

   j.  A DA Form 2823 (Sworn Statement), dated 6 September 2012, in which the applicant states she was formally counseled on a debt incurred when she was transferred from the 26th MEB to JFHA-MA and was the result of the difference in pay for BAH and COLA.  She states she never received a copy of the original order and was told that it was not processed until 9 August 2012, which resulted in the overpayment.  She was provided guidance on requesting remission of the debt and also requested revocation of the orders.  She also asserted that her case fell under the provisions of Army Regulation 600-4 (Remission or Cancellation of Indebtedness), paragraph 3-6, based on her permanent physical disability as a result of injuries incurred in line of duty under combat conditions, her continued medical leave during the period, and subsequent permanent disability retirement.

   k.  DA Form 3508 (Application for Remission or Cancellation of Indebtedness), dated 6 September 2012, and email messages, dated 21 August to 7 September 2012, between the applicant and officers in her chain of command, that summarize the events and processing of her request for remission of debt in the amount of $24,762.00.  

    	(1)  On 16 October 2012, the applicant's commander recommended approval, in part, for the debt she incurred during September and October 2010 based on:
    	(a)  The orders in question were issued on 9 October 2010 with an effective date of 30 September 2010 and the orders were delivered to the applicant via official government email address on 12 October 2010.  Thus, she would not have had the ability to realize the change in BAH (for the months of September and October 2010) before it could be corrected.  He added it was fair to cancel a debt when the debt was created without the Soldier having any knowledge of the debt or any way to prevent it.

    	(b)  He noted that, on 15 October 2010, in an email message to her new supervisor, the applicant acknowledged her transfer to the G-4 in Milford, MA.

    	(c)  Army Regulation 600-4 makes it the duty of Soldiers to review their monthly leave and earnings statement (LES) and to report discrepancies to the commander.  The applicant did not report any such discrepancy.  In addition, in response to a reassignment action in September 2004, the applicant requested a BAH waiver in order to receive the BAH rate of her HOR.  Thus, she was personally familiar with reassignment actions affecting BAH rates.

    	(d)  The applicant failed to take any action to correct the error.  Upon discovering the debt, the command immediately suspended the debt pending further actions and a determination on the debt.

    	(2)  On 5 November 2012, the Army Chief of Staff, JFHQ, Massachusetts National Guard, Milford, MA, recommended approval, in part, for the debt incurred during September and October 2010.

    	(3)  On 3 December 2012, Colonel Thomas A. D-----, Office of the U.S. Property and Fiscal Officer for Massachusetts, Milford, MA, recommended approval, in part, of the applicant's debt incurred during the period 30 September 2010 to 15 October 2010.  He added that she is not entitled to receive payments in excess of her entitlements, she does not acquire title to the excess amounts and has a duty to notify, and has a duty to them for eventual repayment.
   
   l.  DA Form 3508, dated 31 January 2013, that shows the applicant resubmitted her request for remission of debt in the amount of $24,762.00.  
   
   m.  HRC, Fort Knox, KY, memorandum, dated 20 February 2013, that shows the applicant's application for remission or cancellation of indebtedness in the amount of $24,762.00 was reviewed in accordance with Army Regulation 600-4 and the request was partially approved for $16,508.00.  The review determined that no grounds exist to remit or cancel the debt based on injustice.  She was also informed to contact DFAS for proration of the remaining balance and of the option to apply to the Army Board for Correction of Military Records for further review.

11.  Army Regulation 600-4 outlines the policies and guidance for remission or cancellation of indebtedness to the U.S. Army.  It allows all Active Army Soldiers and those in the AGR program to submit an application for remission or cancellation of indebtedness to the U.S. Army.

   a.  Paragraph 1-4 (Responsibilities) provides that the Secretary of the Army may remit or cancel a Soldier's debt(s) to the U.S. Army or its instrumentalities, if such action is in the best interests of the United States, the debt was incurred while on active duty or on active status, and Soldier received an honorable discharge (if separated from active duty).  The Secretary of the Army has designated the Commanding General, HRC to act for him or her in processing applications.

   b.  Paragraph 3-6 (Wounded Warriors) provides that upon discovery of debt that may be remitted or cancelled for Soldiers who have been injured or wounded in action, to include disease and non-battle injury, the Finance and Accounting Officer will:
   
* confirm the debt
* ensure collection of the debt is stopped until a final decision is made
* notify commander exercising control over the Soldier's whose pay account is affected

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her debt incurred due to receiving BAH/VHA and COLA should be forgiven and she should be reimbursed all funds collected as a result of this correction because she was unaware of orders issued in October 2010, she was being processed through the PDES and on convalescent leave beginning 5 December 2009, and orders were subsequently issued nearly 
2 years after the effective date of the orders that authorized the BAH.

2.  On 31 July 2009, the NGB approved her retention in an active status and on active duty beyond her MRD of 31 August 2010, until 30 September 2011 for the purpose of achieving 20 years active service for retirement.

3.  On 7 October 2010, the applicant was issued orders assigning her to HHD JFHQ-MA, Milford, MA, with duty as Deputy G-4, effective 30 September 2010 for an indefinite period.  The orders noted that her current residence was within established commuting distance to the new duty station.  The evidence of record shows she acknowledged she received the orders as of 15 October 2010.

4.  On 21 June 2012, the ASA (M&RA) approved, as exceptions to policies, the applicant's retention in the Ready Reserve from 1 October 2011 until 31 October 2012, or for not more than 30 days after completion of physical disability evaluation.

5.  On 23 July 2012, JFHQ, Massachusetts National Guard, Milford, MA, issued orders showing the applicant was ordered to full-time National Guard duty in an AGR status and she was assigned to HHD, JFHQ, Massachusetts National Guard, Milford, MA, effective 1 October 2011 through 31 October 2012.  The additional instructions of the orders show, "your AGR orders are continued solely for the purposes of the completion of physical disability evaluation."

6.  On 9 August 2012, the applicant was notified of a debt in the amount of $26,526.00 incurred due to receiving incorrect BAH and COLA and she submitted a request for cancellation or remission of the debt.  Her chain of command recommended approval, in part, of the debt incurred during September and October 2010 based on the applicant's acknowledgement of receipt of her orders, her familiarity with reassignment actions affecting the BAH process, and duty to review her monthly LES and to timely report any discrepancies.

7.  On 20 February 2013, the applicant's request for remission or cancellation of indebtedness in the amount of $24,762.00 was partially approved for $16,508.00.  However, the HRC review determined that no grounds exist to remit or cancel the debt based on injustice. 

8.  The evidence of record fails to support the applicant's claim that she was not aware of the orders that transferred her in the Fall of 2010 until the Summer of 2012.  In fact, the evidence of record shows she was aware of the orders as early as 15 October 2010.  In addition, there is no evidence of record that shows the applicant took action to correct the error in her pay for nearly 2 years, and then only after she was counseled on the debt.  Moreover, the applicant provides insufficient evidence to show that the debt is invalid, incorrect, or unjust.

9.  Therefore, in view of all of the foregoing, it is concluded that the applicant's debt is valid and she is not entitled to cancellation or remission of the 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)                                         AR20130005122



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ABCMR Record of Proceedings (cont)                                         AR20130005122



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