IN THE CASE OF:	  

		BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20150006183 


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 and cancellation of his indebtedness that resulted from overpayment of Basic Allowance for Housing (BAH).  

2.  The applicant states the debt was incurred from BAH overpayment from 27 April 2009 to 14 March 2014.  The total debt to the government due to overpayment was $31,993.03.  He submitted a DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ), and/or Variable Housing Allowance (VHA)) in a timely manner but management controls were not followed while processing the form and audit control measures were not conducted for nearly 5 years to find and correct the error.  

3.  The applicant provides:

* Partial approval by the U.S. Army Human Resources Command (HRC)
* Request to prorate debt with favorable endorsements by the Missouri Army National Guard (MOARNG) 
* DA Form 3508 (Application for Remission/Cancellation of Indebtedness) 
* 2009 active duty orders 
* 2009 DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* Separation Orders 064-284
* DD Form 5960, dated January 2014 and March 2009
* Notification of overpayment
* Memorandum for Record 
* Sworn Statement 
CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and the MOARNG and executed an oath of office on 5 January 1990.

2.  He served in a variety of staff or command assignments, including periods of active service from 1 March 2000 to 10 April 2008 and from 11 April 2008 to 24 April 2009.  He was promoted to lieutenant colonel in March 2008.

3.  He entered active duty on 25 April 2009.  He retired from active duty by reason of sufficient time for retirement and transferred to the Retired Reserve on 31 July 2015. 

4.  On 14 March 2014, the applicant was notified as having been paid BAH based on the wrong zip code from 26 April 2009 through 28 February 2014.  By memorandum for record, the MOARNG Financial Manager stated: 

	a.  Although the applicant submitted DD Form 5960 to Human Resources Active Guard Reserve (AGR), the change was not processed in the finance system in 2009.  In March 2014, Military Pay was notified of this overpayment of BAH by Human Resources AGR Administration (HRA) staff.  Military Pay requested the original required Transmittal Letter (TL) submitted with the change of duty station documents for him in order to research the system history to identify where the breakdown happened.  HRA indicated that TL# AGR-P09129 was submitted on 27 April 2009 with a DA Form 5960 and orders for permanent change of station (PCS) on the applicant to zip code 65101.  This TL was never received in Military Pay as indicated by the Document Control Module (DCM) screenshot.

	b.  Because the Military Pay Section (MPS) did not receive TL AGR-P09129, the action to change his duty station zip code was not processed.  He continued to be paid at his previous rate until the error was identified in March 2014.  This resulted in an overpayment of BAH from 26 April 2009 to 28 February 2014 in the amount of $31,993.03. 

	c.  Since this issue was identified, Resource Management has emphasized the processes in place to avoid similar finance problems in the future.  HRA has been reminded to perform the monthly review of the Unit Command Finance Report that indicates at which zip code each AGR Soldier is receiving BAH. Service Members have been reminded to review their Leave and Earnings Statements (LESs) regularly, and especially when administrative changes are pending.
5.  On 5 June 2014, the applicant submitted a DA Form 3508 requesting cancellation of the debt.  His request was supported by the MOARNG Chief of Staff who rendered a memorandum on 5 June 2014 in which he said the applicant properly submitted the required DA Form 5960 noting the correct BAH zip code to HR for processing.  Unknown to him, the United States Property and Fiscal Office (USPFO) pay branch did not receive the form from HR and his BAH was never adjusted.  Additionally, HR failed to complete annual quality control checks to catch zip code changes and discrepancies until prompted by USPFO this year.  He expected the system would adjust itself shortly since he had turned in the proper forms.  Therefore, he (the Chief of Staff) did not believe it unreasonable he soon began simply ensuring he received BAH, forgot about the potential amount change, and presumed it to be the correct amount.  He did not believe the debt was caused by the applicant's negligence.

6.  On 27 October 2014, HRC responded to the applicant's request for remission or cancellation of indebtedness.  An HRC advisory official stated: 

	a.  The application for remission or cancellation of indebtedness for the applicant in the amount of $27,287.90 has been reviewed and is partially approved for $13,643.95.  The review determined that no grounds exist to remit or cancel the remaining portion based on hardship and/or injustice.  The applicant should contact the local finance office for proration of the remaining balance.

	b.  The applicant can apply to the Army Board for Correction of Military Records for further review if they feel an injustice occurred.  This response does not imply that an error or injustice occurred.  Neither will mere submission of the request guarantee a formal hearing or result in any favorable action taken.  Each case is considered on the evidentiary information provided with the final determination based on the merits of the individual case.

	c.  If the remitted monies are found at a later date to be public funds that were obtained or converted to own use through fraud, larceny, embezzlement, or any other unlawful means, the debt will be reinstated.

7.  On 13 November 2014, the applicant requested through the MOARNG a proration of the debt.  He stated that he was notified of his debt in the amount of $13,643.95 according to the enclosed HRC notification dated 27 October 2014.  He requested to prorate the debt in the amount of $120.00 per month for 114 months until the debt is paid in full.  He stated that his current AGR tour ends on 31 July 2015 and understood that this prorated amount extends past his current AGR tour and will be deducted from retirement pay until the debt is paid in full.  

8.  In the processing of this case, an advisory opinion was received from the Office of the Deputy of Chief of Staff, G-1, on 26 June 2015.  An advisory official stated after careful review of this case, HRC supports the previous decision dated 27 October 2014 and does not support granting full administrative relief for the remaining debt.  Army Regulation 37-104-4, Military Pay and Allowances Policy, paragraph 1-4, subparagraph I, requires Soldiers to review their LES and they are responsible for reporting changes or circumstances that effect their pay.  Although it appears the applicant submitted the proper documentation in 2009 to correct his housing allowance, he did not exercise due diligence in following up with his supporting finance office each month to ensure the allowance was corrected.  It is HRC's position that he would have continued to receive the incorrect housing allowance had it not been discovered by HRC in 2014.

9.  The applicant was provided with a copy of this advisory opinion.  He responded on 17 July 2015 and stated: 

* he wants to emphasize that he submitted the necessary paperwork to adjust his BAH rate
* he was occupied with demobilization and re-acclimating with his family and did not identify the error in the zip code
* had the unit executed the change in the TL, this problem would not have occurred 
* the unit and the finance office did not conduct an audit and the Board should consider that, although he did not exercise due diligence, a part of the negligence was played by the unit

DISCUSSION AND CONCLUSIONS:

1.  The applicant received BAH based on the wrong zip code from 26 April 2009 through 28 February 2014.  Although he submitted DD Form 5960 to his HR Office in 2009, the change was not processed in the finance system in 2009.  

2.  In March 2014, Military Pay was notified of this overpayment of BAH by HR AGR staff.  He applied for remission or cancellation of indebtedness and his request was partially approved in that his debt was reduced from $27,287.90 to $13,643.95.  The review of his request determined that no grounds exist to remit or cancel the remaining portion based on hardship and/or injustice.  

3.  Soldiers are required to review their monthly LES and are responsible for reporting changes or circumstances that affect their pay.  Although it appears he submitted the proper documentation in 2009 to correct his BAH rate, he did not exercise due diligence in following up with his supporting finance office each month to ensure the allowance was corrected.  It appears he would have continued to receive the incorrect housing allowance had it not been discovered by HRC in 2014.  Because this is a valid debt, he should not have it cancelled. 

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)                                         AR20150006183





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ABCMR Record of Proceedings (cont)                                         AR20150006183



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