IN THE CASE OF:	

		BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130006192 


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 his debt in the amount of $7,473.50 due to overpayment of basic allowance for housing (BAH).

2.  The applicant states, in effect:

	a.  His original request for remission/cancellation of indebtedness was based on the fact that the overpayment was not due to any fault or error on his own part.  Upon his wife's passing on 18 January 2011, he inquired many times about his paperwork and whether it was in order.  The debt has also created a financial burden and he is now behind on all of his bills.

	b.  Since his wife passed and he lost her income, he has been trying to keep everything that she and he worked so hard for and he is now on the brink of losing everything.  He is behind on everything since getting a no pay due (NPD) on the first of March.  

3.  The applicant provides:

* a denial letter, dated 15 February 2013, from the U.S. Army Human Resources Command (HRC), Fort Knox, KY
* his sworn statement
* statement of support from his former commander
* recommendation from his battalion commander
* Defense Finance and Accounting Service (DFAS) Leave and Earnings Statements
* DA Form 3508 (Application of Remission or Cancellation of Indebtedness) 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 February 1987.  He was promoted to master sergeant/E-8 on 1 January 2011.

2.  His wife died on 18 January 2011.

3.  On 15 October 2012, he received a notice of indebtedness for overpayment of BAH.

4.  He provides a memorandum, dated 17 December 2012, from his former commander who states:

* the applicant is indebted to the U.S. government because he was given incorrect instructions regarding his BAH upon the death of his wife
* at no time was the applicant trying to deceive or defraud the government
* upon recertification of his BAH in 2012 he was once again given incorrect instructions
* at no time was he attempting to misrepresent his situation
* he fully supports immediate cancellation of the applicant's debt to the government
* in addition to the death of his wife, he has had to endure an immensely degraded quality of life due to a negligent military surgery  

5.  He also provides an undated memorandum from his battalion commander who recommends approval of the remission or cancellation of indebtedness.

6.  On 21 December 2012, he submitted an application for remission or cancellation of indebtedness in the amount of $7,473.50 for BAH.

7.  On 15 February 2013, his application for remission or cancellation of his debt in the amount of $7,473.50 was disapproved.  The Chief, Special Actions Branch, HRC, determined that no grounds existed to remit or cancel the remaining portion of his debt based on hardship or injustice.

8.  On 27 February 2013, he was retired by reason of permanent physical disability (enhanced).   



9.  In the processing of this case, on 29 May 2013, a staff advisory opinion was obtained from the Deputy Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff G-1, Washington, D.C.  The advisory official recommends disapproval of the applicant's request.  The opinion states:

	a.  The Army has reviewed the claim of the applicant and unfortunately is unable to support his request for relief based on a change of dependency status over 2 years ago.

	b.  The Joint Federal Travel Regulation (JFTR), Table 10A-2 Rule 1 states "If the sole dependent dies, then stop with-dependent housing allowance at midnight of the day of death."  It is the responsibility of the Soldier to submit the proper documentation through the local finance office to DFAS to ensure the correction is made in a timely manner.

	c.  The applicant had a waiver to continue BAH and cost of living allowance (COLA) for Hawaii due to his wife's health and his deployment; however, this was valid through 30 days redeployment (or change in dependency status).  Based on the documents submitted, he knew he was being overcompensated and failed to take appropriate and effective action during his last 2 years in the Army.      

10.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded and stated:

	a.  He was having difficulty responding due to the total factual inaccuracy of the memorandum and the unnecessarily accusatory remarks that have no factual basis in any of the records.

	b.  He went to the Casualty Assistance Office the first week after his wife's passing and submitted all the paperwork including a death certificate to update all his records.  In addition, he notified the local STB (Special Troops Battalion) S-1 for the 25th Infantry Division rear detachment and brought all of the paperwork there as well.  He asked several times at each of these places whether he had submitted all of the proper paperwork to all of the required offices and he was assured that his records were updated and that no further action was required on his part.

	c.  His waiver for Hawaii BAH and COLA has nothing to do with his request for reconsideration before the Board.  The waiver has no bearing on the issue at hand which is the overpayment of BAH based on Fort Eustis rates after the passing of his wife on 18 January 2011.  He did have a waiver and it did terminate within 30 days of his redeployment in December 2009.  His Hawaii BAH and COLA were not received after that time period, but were changed to BAH rates for Fort Lewis and then later Fort Monroe.

	d.  He is at a complete loss to understand why him receiving Hawaii BAH and COLA via a waiver authorization which terminated timely within 30 days of his redeployment is even mentioned in this memorandum, never mind utilized as the only supportive evidence of the conclusion that he knew he was being overcompensated.  It truly makes him wonder if the documents submitted were even read because if they had been his waiver would never have even been brought up.

	e.  "Last September," his unit was requested to update and recertify his BAH after he moved from Fort Monroe to Fort Eustis.  Again, as stated in his original request, he asked his unit administrator how to fill out the certification.  He filled out the certification as instructed, checking the with-dependent rate and identifying "widower."  It was at this time that finance sent it back and said he had filled it out wrong and he had been overpaid BAH.  At no time prior did anyone make him aware of the requirement to change the BAH rate upon the death of a spouse.  If they had, he would not have chosen to ignore that information.  He never thought he had done anything wrong or that he hadn't submitted the proper paperwork in regard to his wife's passing.  

	f.  He has served over 27 years in the U.S. military and not once, ever, has his integrity come into question.  He takes great offense to the reference he knew he was being overcompensated and failed to take appropriate and effective action during his last 2 years in the Army.  He is appalled at that statement and cannot say how furious he truly is.  Especially based on the facts contained in the record and the circumstances, to have his integrity questioned is totally out of line.  If the documents submitted had been read through completely it would be clear that his waiver for Hawaii BAH and COLA had absolutely nothing to do with his original request for reconsideration.

	g.  This period of time was one of great loss and chaos in his personal life.  He had just lost his wife of over 27 years.  In his entire career he never had a Soldier who had lost a spouse.  He had to learn through trial and error.  He took these statements and assurances at face value because he had no reason to question them at the time and for that he is truly sorry.

	h.  In closing, he wishes to extend his gratitude to the Board once more for allowing him the opportunity to respond to the advisory opinion.  Since he 
received an NPD on his final pay and he has yet to receive any Department of Veterans Affairs pay, he is now in a dire financial position and extreme hardship.

DISCUSSION AND CONCLUSIONS:

1.  Truly, it is acknowledged that the loss of one’s spouse is a sad and traumatic event.  However, if one has been drawing BAH at the with-dependent rate and then loses that dependent it should be obvious that continued receipt of BAH at the with-dependent rate (at whatever geographical-location rate) is an overpayment.  It appears the applicant did not change his BAH rate upon the death of his spouse in January 2011 and he incurred a debt for overpayment of BAH.

2.  His contentions and the memoranda from his chain of command were carefully considered.  However, regrettably, there is no evidence of record and he provided no evidence which shows this debt was incurred erroneously.

3.  Based on the foregoing, there is insufficient evidence on which to grant his request.

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)                                         AR20130006192



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ABCMR Record of Proceedings (cont)                                         AR20130006192



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