MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 November 2000                   
	DOCKET NUMBER:   AR2000047036

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. Orville W. Troesch, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That his indebtedness be cancelled completely.

APPLICANT STATES:  That he does not understand how he can be held liable for $4,900.00 of a total debt of $14,848.34 when he was never informed of his pay entitlements in the first place.  Since he still had dependents he assumed he was entitled to basic allowance for housing (BAH) at the with dependents rate.  The Florida Circuit Court included the BAH with dependents rate when it determined his child support amount.  He should not be held liable for the erroneous debt of $14,848.34 when over the course of four years the leadership and finance system failed to inform him he was being overpaid even though they were given several opportunities to do so.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army in 1984.  He was promoted to Master Sergeant, E-8 on 1 May 1998.

In June 1996, the applicant’s wife and children left Germany.  He moved into Bachelor Enlisted Quarters in July 1996.  In February 1997, a Judge Advocate General attorney assisted him in preparing a separation agreement.  The attorney advised him to send child support in the amount of $1,100 based upon his basic pay and his BAH at the with-dependent rate.  In August 1997, he departed on leave to finalize the divorce.  Upon his return he notified his command he was divorced.  His command apparently failed to inform him of his entitlements.  In 1998, his children visited him in Germany for the summer.  At this time his cost-of-living allowance was increased to reflect their extended visit and it was decreased to reflect their departure.  Finance apparently did not catch the discrepancy during these transactions.  In April 1999, he remarried.  When he went to enroll his new wife and her dependent children in the Defense Enrollment Eligibility Reporting System (DEERS), his ex-wife’s name appeared on the screen.  He was apparently not informed that he might have a pay problem at this time.  

The applicant was apparently notified around January 2000 that he owed a debt of $14,848.34 for an overpayment of BAH.  He requested cancellation of the debt.  His chain of command supported his request, stating that they were totally convinced that he was unaware that he was not authorized the BAH he received.

A printout from the Defense Finance and Accounting Service indicates that it appears, without knowing all of the facts, that in 1996 the applicant was being paid BAH at the rate of $539.70 per month when he should be been authorized only $164.70 per month.  In 1999, it appears he was being paid $647.70 per month when he should have been authorized only $158.40 per month.  

In his request for cancellation, the applicant listed his combined monthly income as $7,714.29 and his combined monthly expenses as $7,173, for a positive balance of $541.29.  He stated that he could apply $45.00 of this balance per month against the debt.  Based upon the applicant’s figures, the analyst at the  U. S. Total Army Personnel Command, Special Actions Branch recommended that the applicant repay $45.00 per month for 49 months for a total payback of $2,205.00 and a debt cancellation of $12,643.35.  The approval authority, however, apparently felt that $100.00 per month would be a more appropriate payback amount without placing an undue financial hardship upon the applicant. Therefore, $9,948.34 of his debt was cancelled and the remaining balance of $4,900.00 was prorated for payback.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board acknowledges that there was a Government error in this case and agrees with the applicant’s chain of command that he was probably totally unaware that he was not authorized to draw the amount of BAH he was drawing. 

2.  However, the Board finds that there would be no injustice in requiring the applicant to pay back $4,900.00 out of a total debt of $14,848.34.  It is not a question of his good name being discredited or his integrity being questioned.  For almost four years he was receiving an advantage that other soldiers in similar family circumstances were not receiving, albeit without his knowledge.  This is no different than if the Internal Revenue Service or a civilian banking institution made an overpayment error in the applicant’s favor and, upon realizing the error, required payback of the overpayment except in this instance the Army is willing to forgive almost two-thirds of the overpayment.  

3.  The applicant might want to consider requesting the Florida Circuit Court recalculate his child support payments in light of his true financial affairs.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jlp___  __bjl___  __owt___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000047036	
SUFFIX		
RECON		
DATE BOARDED	20001109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.10	
2.		
3.		
4.		
5.		
6.