MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 February 2002                   
	DOCKET NUMBER:   AR2001062147

	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:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. John T. Meixell		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 he be reimbursed all the pay he has forfeited to the present to include interest.

APPLICANT STATES:  He married on 3 February 1997.  When he and his wife went to finance to turn in their marriage paperwork, he disclosed all information about paying child support.  He was informed that he was still entitled to basic allowance for housing (BAH) at the without dependents rate as well as BAH differential (BAH-DIFF) because he was paying court-ordered child support.  He never drew BAH at the with dependents rate.  He was provided erroneous information at Fort Campbell, KY and then the BAH code was changed.  This information was not provided to him or his unit in order to make the necessary correction until three years later.  He believes this debt was not due to his own fault and he should not be held liable to repay the Government $7,200.  He provides an 8 June 2000 memorandum from the Defense Finance and Accounting Service (DFAS), Fort Sill, OK office and a 26 December 2000 letter from himself to “To whom it may concern” as supporting evidence.

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

He enlisted in the Regular Army on 17 September 1986.  He was promoted to Staff Sergeant, E-6 on 1 April 1993 and to Sergeant First Class E-7 on 1 April 2001.

Apparently around April 2000, the applicant incurred a debt of $6,678.31 as a result of an overpayment of BAH and applied for remission or cancellation of indebtedness based upon injustice.  On 8 June 2000, DFAS, Fort Sill, OK prepared a memorandum for the U. S. Total Army Personnel Command (PERSCOM) recommending disapproval of his request.  That office noted that “The ‘child in custody’ block of the DA Form 5960 does not contain a child in custody of service member election area.  It states child in custody and the blocks identify member, spouse, former spouse, and other (copy attached).”  It noted that he drew the with dependent rate of BAH at the grandfather code prior to being married to another service member on 3 February 1997.  His BAH rate was changed to code I (soldier married to soldier) and BAH-DIFF (paying court-ordered child support effective the date of marriage).  Conversation with DFAS, Fort Sill, OK on 6 February 2002 revealed that the Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA), DA Form 5960, which should have been attached to the applicant’s remission of indebtedness packet was no longer available (the 2000 files which should have had the remission packet having been destroyed a short while ago). The point of contact on the 8 June 2000 memorandum could not remember 

exactly what was in block 4 (“child in custody” block) of the subject DA Form 5960.  She also stated that the applicant’s BAH code was actually changed, to be effective the date of his marriage, on 20 April 2000 and was most likely the result of a routine audit.

In the processing of this case, an advisory opinion was obtained from the Special Actions Branch, PERSCOM.  That office stated that there was a lack of evidence to support injustice and disapproved his remission application.  That office further stated that reconsideration should be given to his request if he could produce the DA Form 5960.  On 6 February 2002, that office stated that if the applicant can produce the DA Form 5960 and has not repaid the debt, he could resubmit his packet to that office.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

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

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant has submitted insufficient evidence for the Board to conclude that an injustice has occurred in this case.  The applicant has not provided the DA Form 5960 in question.  The comment made by the DFAS, Fort Sill, OK office concerning block 4 of this DA Form 5960 is unclear to the Board.  It could mean he checked no item in this block or he checked all items.  He states that he was never paid BAH at the with-dependents rate but provides no leave and earnings statements to verify this.  

3.  Even if the applicant had completed the DA Form 5960 correctly and the finance office had processed it incorrectly, the applicant had the use of the extra pay he received over a period of three years.  The Board does not find it unreasonable to expect him to repay monies he was not entitled to receive once the error was discovered.  

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

__rvo___  __cla___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062147	
SUFFIX		
RECON		
DATE BOARDED	20020228	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.10	
2.		
3.		
4.		
5.		
6.