BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20130009793 


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 indebtedness he incurred for overpayment of basic allowance for housing (BAH).

2.  He states he did everything within his ability to inform the Defense Finance and Accounting Service (DFAS) of changes to his BAH.  He has documentation showing the attempts made by him and his unit to inform DFAS of the changes.  DFAS failed to process his request in a timely manner, which caused his indebtedness.  Had DFAS processed his request, he would not have the debt.

3.  He provides:

* orders
* two DA Forms 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance)
* Air Force (AF) Form 594 (Application and Authorization to Start, Stop, or Change BAQ or Dependence Determination)
* Customer Service In-Processing Checklist
* two DD Forms 1351-2 (Travel Voucher or Subvoucher)
* DA Form 31 (Request and Authority for Leave)
* DA Form 4187 (Personnel Action)
* e-mail correspondence
* memorandum, subject:  Transmittal of Pay and Other Documents, dated 9 February 2012
* memorandum, subject:  Transmittal of Pay and Other Documents, dated 26 March 2012
* memorandum, subject:  Transmittal of Pay and Other Documents, dated 17 May 2012
* DA Form 2142 (Pay Inquiry)
* memorandum for record (MFR), subject:  Notice of Indebtedness
* MFR, subject:  Waiver of Indebtedness, dated 2 November 2012
* DA Form 3508 (Application for Remission or Cancellation of Indebtedness)
* MFR, subject:  [Applicant], bearing a suspense date of 17 November 2012
* MFR, subject:  [Applicant] BAH Debt, dated 13 November 2012
* DA Form 2823 (Sworn Statement)
* eleven DFAS Forms 702 (DFAS Military Leave and Earnings Statement)
* memorandum, subject:  Remission or Cancellation of Indebtedness – [Applicant], dated 7 March 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 21 December 1987.  Following periods of USAR and Army National Guard service, on 24 August 1997, he entered active duty as a member of the USAR in the Active Guard Reserve (AGR).  At the time of his application to this Board, he was serving in an AGR status as a master sergeant/E-8.  

2.  On 21 July 2011, the U.S. Army Human Resources Command (HRC) issued Orders R-07-188862, which directed the applicant to proceed on permanent change of station (PCS) to a unit in Wichita, KS.  His reporting date was 28 November 2011.  He provides documentation showing he reported as ordered.

3.  He provides numerous documents in support of his application, several of which are described below.

	a.  On 28 November 2011, he and a certifying official signed a DA Form 5960.  The form shows he requested to stop BAQ and that he had been assigned to government quarters.  

	b.  On 13 December 2011, he and a Housing Management Assistant signed an AF Form 5944.  The form shows he was assigned to government quarters.  In item 8, he indicated he was claiming BAQ for a spouse and son.  The form is not signed by a certifying official.  

	c.  E-mail correspondence from Sergeant First Class (SFC) J, his unit's G-1 Human Resources Noncommissioned Officer, shows requests to stop his BAH were submitted to DFAS in February, March, April, and May 2012.  
	d.  An undated MFR from the Director, Defense Military Pay Office Indianapolis (DMPO-IN), Indianapolis, IN, informed the applicant he was indebted to the U.S. Government in the amount of $14,248.60 due to the overpayment of BAH for the period 28 November 2011 to 30 September 2012.  

	e.  In an MFR, dated 2 November 2012, the applicant requested waiver of indebtedness for overpayment of BAH.  He stated:

* in November 2011, he completed a PCS to Wichita, KS
* he was granted housing on McConnell Air Force Base, KS, with a move-in date of 15 December 2011
* after he moved in, he completed the necessary documentation, which was forwarded to DFAS
* he noticed his January leave and earnings statement (LES) showed full BAH and was told by SFC J he should give DFAS a chance to work the action
* his February LES still showed he was receiving BAH, so SFC J submitted documentation to DFAS requesting to stop his BAH
* his March LES showed he was receiving BAH, so SFC J again submitted documentation to DFAS
* he received BAH in May
* SFC J had orders to leave the unit, so he contacted DFAS by telephone and was told he needed a "CMS case" 
* from June to August he had no contact with DFAS
* Staff Sergeant (SSG) T came to the unit in September was able to get the issue resolved
* he felt DFAS systems had failed him and caused the issued to escalate
* the responsibility should not be wholly on him
* some lenience should be afforded to the Soldier when attempts are made to do the right thing and the failure is with DFAS

	f.  An e-mail from the DMPO-IN Processing Chief to SSG T, dated 7 November 2012, shows the applicant's pay account was updated to show a suspended debt.  The DMPO-IN Processing Chief apologized for their mistake.

	g.  A DA Form 3508 shows he submitted a request for remission or cancellation of his indebtedness on 6 November 2011.  

	h.  In an MFR, dated 13 November 2012, his commander recommended approval of a waiver of the applicant's debt.  

	i.  On 7 March 2013, the Chief, Operations Management Division, HRC, disapproved his application for remission or cancellation of indebtedness.  A review determined that no grounds existed to remit or cancel the debt based on hardship or injustice.  

4.  The official website of the Defense Travel Management Office defines BAH as a U.S. based allowance prescribed by geographic duty location, pay grade, and dependency status.  It provides uniformed Service members equitable housing compensation based on housing costs in local civilian housing markets within the United States when government quarters are not provided.  

5.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) gives instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army.  Applications must be based on injustice, hardship, or both.  The Army may remit or cancel a Soldier's debt arising from payments made in error, payments made in excess of an allowance on behalf of a Soldier, or debts incurred while serving on active duty.  To determine injustice the application must contain evidence that the applicant did not know and could not have known of the error and/or the applicant inquired of a proper authority and was told the payment was correct.  To determine injustice or hardship HRC must consider the Soldier's awareness of policy and procedures, military occupational specialty, rank, years of service, and prior experience.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for remission or cancellation of indebtedness he incurred for overpayment of BAH.

2.  It is clear that DFAS erred by not stopping his BAH payments in a timely manner.  It is also clear that the applicant was aware of the problem throughout the period during which he received the erroneous payments.  

3.  It appears he believes the basis for remission or cancellation of his debt is DFAS's failure to stop his BAH payments in a timely manner.  The delay, while unfortunate, does not constitute an injustice, and there is no evidence that this debt has created a hardship.  It is reasonable to expect that a Soldier of the applicant's grade and length of service would have anticipated the establishment of a debt and would have set aside the erroneous BAH payments to immediately resolve the debt when it was established.  

4.  In view of the foregoing, there is no basis for 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 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)                                         AR20130009793





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ABCMR Record of Proceedings (cont)                                         AR20130009793



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