PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  16 May 2000
	DOCKET NUMBER:  AR2000040116

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Carl W. S. Chun		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Van B. Cunningham		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, refund of $1,781.69 collected by finance on a debt that was remitted and cancelled by the U.S. Army Personnel Command (PERSCOM).

3.  The applicant states, in effect, that he was placed in a position of indebtedness to the U.S. Government by erroneous payments to him by finance of Dislocation Allowance (DLA) and related benefits, Basic Allowance for Quarters (BAQ) (now called Basic Allowance for Housing - BAH), and Family Separation Allowance (FSA) in the total amount of $7,115,78.  The overpayments were not due to any fault of his own nor did he know the payments were erroneous.  The resulting collections left him with insufficient pay to support his family or pay his bills.  The applicant did not initially know that he could rebut the indebtedness.  He appealed the indebtedness through his command.  After an investigation of the circumstances by his command, they recommended that his debt be remitted or cancelled finding the error to be a system error and not the fault of the soldier.  PERSCOM concurred and remitted and cancelled the remaining debt not yet collected in the amount of $5,344.09.  They referred the applicant to the ABCMR for action on refund of the $1,781.69 already collected since they do not have authority to direct such refund.

4.  The applicant’s military records show that he is a Sergeant E-5 in the Regular Army currently assigned at Fort Gordon, Georgia.  He initially enlisted on 
25 February 1988.  He has continued to serve in the Regular Army to date with a six and a half month break in service between enlistments in 1994.

5.  The applicant was stationed at Fort Drum, New York, in 1997.  In May 1997, he, as a single parent, received court ordered custody of his child for 7 months out of the year.  The Fort Drum finance office initiated BAQ for the applicant.  He proceeded on a Permanent Change of Station (PCS) to Fort Clayton, Panama, on 6 June 1998.  The Fort Clayton finance office evaluated his orders and authorized him BAQ and FSA.  They also paid him family DLA, dependent per diem, and dependent Mileage Allowance for Leave and Travel (MALT).

6.  The applicant PCS’d with his unit, the 225th Signal Company, to Fort Gordon on 9 December 1998.  When he inprocessed through the finance office at Fort Gordon, he was informed that all of the above pay was incorrect.  The applicant called the Fort Drum and Fort Clayton finance offices and they confirmed their pay actions as correct to their understanding.  However, Fort Gordon demonstrated that the applicant did not meet the eligibility requirements for such payments since he 

had custody of his dependent only 7 months out of the year which qualified him only for Basic Allowance for Housing – Differential. (BAH-DIFF).  The Fort Gordon finance office initiated collection actions to collect $7,115,78 of overpayment over a 12 month period.  This left the applicant unable to pay his bills or support his dependents.  During this time, the applicant married the mother of his dependent.  To make matters worse, the state of New York also garnisheed his wages for back child support for the dependent he was trying to support in his direct care to whose mother he was then married.

7.  The command investigated the applicant’s financial dilemma, found that the applicant was not culpable, obtained suspension of the collections, and requested cancellation of his debt to the U.S. Government.  PERSCOM approved the cancellation of the applicant’s remaining debt, $5, 334.09, and referred the applicant to the ABCMR for refund of the amount already collected by finance, $1,781.69.

CONCLUSIONS:

1.  The applicant’s command determined that the soldier was not culpable for the finance overpayments to him for BAQ, VHA, FSA, DLA, Per Diem, and MALT during the period 18 November 1987 to 30 December 1998.  The applicant did not present false information or try to defraud the government.  The errors were made by finance personnel that did not fully understand the applicable regulations in the applicant’s unique situation.  PERSCOM agreed, cancelled and remitted the uncollected remainder of the debt ($5, 334.09), and recommended application to the ABCMR for refund of the amount collected, $1,781.69.  Based on the evidence and command investigation, the applicant is not at fault and should not be penalized for system errors apparently made unintentionally.  The collected amount should be refunded to the applicant.

2.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected for the individual concerned by refunding to him $1,781.69.

BOARD VOTE:  

__AO___  __LE___  ___VC___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___ Arthur A. Omartian __
		        CHAIRPERSON

INDEX

CASE ID	AR2000040116	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000516	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.128.1	Remission/Cancellation of a Debt	
2.		
3.		
4.		
5.		
6.