MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  11 October 2001
	DOCKET NUMBER:  AR2001059889

	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	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Jose A. Martinez		Member	
	Mr. Mark D. Manning		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:  In effect, that he be reimbursed $6,702.67 collected from his earnings to pay back a debt to the government for overpayment of Basic Allowance for Housing (BAH).

APPLICANT STATES:  In effect, that when he arrived at Fort Stewart, Georgia, and inprocessed, he informed them that he was in government housing.  When he got to his unit, he also informed them that he was in government housing.  But his BAH never stopped.  When it did not stop, he submitted pay inquiries several times to find out what was wrong.  He never received a reply.  His first sergeant and platoon sergeant were aware of the problem.  He went with his section sergeant to the first sergeant and told him again about the overpayments.  His first sergeant said he would check and find out about the BAH since he and his wife were a dual military family.  The first sergeant came back and said there was no problem with his BAH pay and so informed his section and platoon sergeants.  A year went by and nothing was said until the first sergeant got ready to retire.  Though he tried to stop the BAH pay, in about July 1999, he was accused of fraud.  He went through a year of investigation and was found not at fault.  The monthly collection of the debt caused him great financial hardship.  He did what he was supposed to but did not receive help to stop the overpayments.

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

That he, a specialist who was later promoted to sergeant, was transferred from assignment in Korea to assignment in Company D, 703d Main Support Battalion, at Fort Stewart, Georgia, on 19 February 1998.  He was married to a senior enlisted military member who was assigned government housing at Fort Stewart. They had a 3 year old dependent daughter.

On 16 August 1999, he was charged by military finance with a debt of $13,116.52 for overpayment of BAH and Variable Housing Allowance (VHA) during the period of January 1997 through August 1999, in amounts of $408 to $475 per month.  In October 1999, an Army Regulation 15-6 investigation was conducted which cleared the applicant of fault and pending Uniform Code of Military Justice nonjudicial action.  On 17 November 1999, the Chief of Military Pay issued a letter to the applicant’s unit commander informing him that the applicant had a debt of $12,738.99.  The letter provided a suspense until 
16 January 2000, to arrange a repayment plan.  Starting about February 2000, $445.77 was collected monthly from his earnings.  In October 2000, he applied for debt relief but the request was lost.  On 21 December 2000, he again submitted a DA Form 3508-R (Application for Remission or Cancellation of Indebtedness) to apply for debt relief based on financial hardship.  His commander recommended approval.  His battalion commander and the Division 

Support Command (DISCOM) commander also recommended approval.  Debt collection was suspended on or about 19 April 2001.

On 13 June 2001, the Special Actions Branch, Total Army Personnel Command (PERSCOM), approved remission or cancellation of the remaining indebtedness of $5,949.30.  The applicant was also informed by the letter that $6,702.67 of the debt collected prior to the commander’s suspension of the debt collection, could not be considered for remission or cancellation under the provisions of paragraph 
1-11b, Army Regulation 600-4.  The letter stated that if the applicant felt that an injustice had occurred surrounding the collected portion of the debt, that he could apply to the Army Board for Correction of Military Records for further review.

Army Regulation 600-4 (Remission or Cancellation of Indebtedness for Enlisted Members), paragraph 1.11b, states that the Commanding General, PERSCOM, will not consider the remission or cancellation of a debt repaid or collected before the immediate commander signed the DA Form 3508-R (Application for Remission or Cancellation of Indebtedness).  If a debt is paid in part, however, the remaining portion will be considered.

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.  That the applicant received overpayment of allowances for BAH and VHA in the amount of approximately $12,651.97, of which $6,702.67 was collected back and $5,949.30 was remitted and cancelled due to financial hardship.  He has retained the benefit of the $5,949.30 that he received as overpayment and is not required to repay.  The amount that was collected, $6,702.67, was a just debt to pay back overpayment that he had received.  The applicant stated that he knew that he was being overpaid.  Failure of the system to properly stop overpayment in a timely manner, in this case, does not relieve the applicant of responsibility for paying back what he knew he was overpaid.  No justification has been established to reimburse the applicant the overpayment collected back against this just debt.

2.  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

__jl___  ___jm___  ___mm_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001059889	
SUFFIX		
RECON		
DATE BOARDED	20011011	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.1 – Remission/Cancellation of Debt	
2.		
3.		
4.		
5.		
6.