PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 May 2002                   
	DOCKET NUMBER:   AR2002067423

	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.  

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

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Paula Mokulis		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 that he be refunded the monies already collected from him as a result of overpayment of basic allowance for housing (BAH).

3.  The applicant states that he tried to get his BAH issue resolved beginning with turning in his divorce papers immediately after his October 1999 divorce.  He was either told that he was receiving the correct BAH or his cancellation/remission packet was lost.

4.  The applicant’s military records show that he enlisted in the Regular Army on 11 August 1988.  On an unknown date, he married.  Apparently he divorced in October 1999 while stationed in Korea.  He apparently received the divorce decree on 22 October 1999 and the following Monday his battalion Personnel and Administration Center had him fill out the paperwork to change his BAH.

5.  The applicant’s BAH rate never changed until mid-month January 2001, when he was charged for a debt in the amount of $6,050.16 for overpayment of BAH.  A total of $1,231.25 was taken from his January 2001 pay.  Apparently, his November or December 2000 leave and earnings statement indicated he had a Government indebtedness.   

6.  On 6 February 2001, the applicant completed and his commander signed an Application for Remission or Cancellation of Indebtedness, DA Form 3508-R.  

7.  In the processing of this case, an advisory opinion was obtained from the Special Actions Branch, U. S. Total Army Personnel Command (PERSCOM).  That office stated that the applicant’s DA Form 3508-R was apparently lost several times.  It was finally received by that office on 14 November 2001.  On  19 November 2001, that office approved remission or cancellation of the applicant’s indebtedness in the amount of the debt uncollected at the time his remission application was submitted.  The amount that had been collected prior to the commander’s signature on the application could not be considered for remission or cancellation.  However, if the portion of debt repaid had not been collected prior to the commander’s signature on the DA Form 3508-R, that office would have favorably considered the entire debt based on the supporting documentation presented.

8.  A copy of the advisory was provided to the applicant for comment.  He concurred in the advisory opinion.

CONCLUSIONS:

1.  The applicant’s commander confirmed that the applicant took immediate action to inform the Army he had divorced and to change his BAH rate.  The Army took no action to change his BAH rate until over a year later, by which time the applicant accrued a debt for overpayment of BAH in the amount of $6,050.16. He took immediate steps to satisfy the requirement for submitting an application for remission or cancellation of his indebtedness when his indebtedness first became known.  The packet was lost for an unknown reason and was not received at PERSCOM until November 2001.

2.  PERSCOM approved remission or cancellation of the applicant’s indebtedness in the amount of the debt uncollected at the time his remission application was submitted.  The amount that had been collected prior to the commander’s signature on the application could not be considered for remission or cancellation.  However, PERSCOM stated that if the portion of debt repaid had not been collected prior to the commander’s signature on the DA Form 3508-R, it would have favorably considered the entire debt based on the supporting documentation presented.

3.  While the Board recognizes that the Army is not liable for the erroneous actions of its officers, agents, or employees, even though committed in the performance of their duties, the Board believes that it would be in the interest of justice and equity to grant the full relief requested.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  showing the applicant completed and his commander signed a DA Form 3508-R on 1 December 2000 requesting remission or cancellation of his indebtedness for a total amount of $6,050.16; and

     b.  showing that the DA From 3508-R was received and processed by the appropriate office at PERSCOM and approved for remission or cancellation of the total amount of $6,050.16 prior to any collection being made by DFAS.

2.  That, as a result of the above corrections, any collections made by DFAS for this indebtedness be refunded to the applicant as an erroneous collection.

BOARD VOTE:  

__fne___  __rwa___  __pm____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002067423	
SUFFIX		
RECON		
DATE BOARDED	20020516	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.10	
2.		
3.		
4.		
5.		
6.