PROCEEDINGS

	IN THE CASE OF.

	BOARD DATE:           10 June 2003                 
	DOCKET NUMBER:   AR2003086367

	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	
	MR. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. John T. Meixell		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, remission or cancellation of his 
$5,379.62 debt to the government.  

3.  The applicant states, in effect, that while he was stationed in Germany, he was informed by officials of the 106th Finance Office that he was entitled to Basic Allowance for Housing-Difference (BAH-DIFF.  When finance officials made this determination it was clear he was living in government family quarters, because he had to provide documentation on his residence.  He states that he cannot understand why he is now being held responsible for erroneously receiving this allowance that was authorized by the proper finance officials.  

4.  The applicant also claims that when he first arrived in Germany, his BAH was stopped.  However, after discovering that other soldiers in his same situation were receiving BAH-DIFF, he inquired into his eligibility.  Finance officials ultimately interpreted the language in the Department of Defense Financial Management Regulation (DODFMR) in his favor and concluded that notwithstanding the fact that he was living in family quarters, he was entitled to receive BAH-DIFF.  At that time, the 106th Finance Office authorized him retroactive BAH-DIFF pay back to the date he arrived in the command.  

5.  The applicant further states that it was not until he arrived at Fort Sill, Oklahoma, that he was informed he had not been eligible to receive the 
BAH-DIFF allowance while he was in Germany.  This resulted in the debt he is trying to resolve now.  He states that if he were not authorized to receive the BAH-DIFF pay, the finance office in Germany should not have authorized the payment.  He further states that he is not a subject matter expert on finance matters and could not be expected to know that he was not authorized the allowance in spite of it being authorized by the proper finance authorities.  

6.  The applicant concludes that this debt to the government is not only unjust because it was authorized by Army finance officials, it also creates an extreme financial hardship on him and his family.  He asks that this be taken into consideration when his case is considered. 

7.  The applicant’s military records show that as of the date of his application to the Board, he was still serving as a staff sergeant (SSG) on active duty at Fort Sill, Oklahoma.  

8.  While stationed in Germany, the applicant was authorized to receive a 
BAH-DIFF allowance by local finance office officials.  The applicant received a total of $5,379.62 for this allowance between the years 2000 and 2002.  

9.  On 23 September 2002, upon the applicant’s in-processing at Fort Sill, Oklahoma, a Pay Adjustment Authorization (DD Form 139) pertaining to the applicant was issued by the Chief, Defense Military Pay Office (DMPO), Fort Sill. This document indicated that the applicant was erroneously paid BAH-DIFF while he was assigned to Germany.  This resulted in his being overpaid $5,379.62, for the period 23 May 2000 through 31 August 2002.

10.  On 22 October 2002, the applicant submitted an Application for Remission or Cancellation of Indebtedness (DA Form 3508-R), which was verified by his unit commander and the Chief, DMPO.  The applicant’s unit commander submitted a memorandum in support of this application and recommended that it be approved.  He further stated that the remission of the applicant’s debt would serve the best interest of the government because it was simply the right thing to do.  He also indicated that collection of the debt would have a severe negative impact on the applicant and his family. 

11.  In his supporting statement, the unit commander also indicated that other soldiers were receiving BAH-DIFF for the same reasons as the applicant, and it was the opinion of finance officials in Germany that the applicant was entitled to the allowance.  In fact, these experts not only authorized the payment, but also made it retroactive to the applicant’s arrival in their command.  

12.  The unit commander further stated that while the applicant was an excellent field artillery soldier and an expert in field artillery matters, but he could not be expected to be an subject matter expert in finance policy.  Further, the unit commander indicated that he reviewed paragraph 260409B of the DODFMR, and his interpretation was that the situation outlined in this policy guidance was exactly that of the applicant.  He concludes that if there is some reason the applicant is not entitled to BAQ-DIFF, it certainly was not clear to him.  However, if it is finally determined that the applicant was not entitled to BAH-DIFF, the debt should still be excused for the reasons given.

13.  The applicant’s battalion commander also provided a memorandum in support of the applicant’s application for remission of the debt.  He stated that it appeared the situation amounts to a difference of opinion between finance personnel on the current interpretation of the regulation.  He further comments that it is not reasonable to expect the applicant to be held responsible for knowing the correct interpretation of the regulation.  If a soldier is told by one finance office that he is entitled to a payment, he has no reason to doubt the experts.  He finally recommended remission or cancellation of the applicant’s indebtedness.  

14.  On 8 January 2003, the Total Army Personnel Command (PERSCOM), Chief of Special Actions, responded to the applicant’s cancellation or remission of indebtedness application.  He stated that the application had been reviewed in accordance with the regulation and was not favorably considered.  The applicant was advised that if he believed an injustice had occurred, he could apply to this Board.

15.  Army Regulation 600-4 provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the United States  Army.  Applications must be based on injustice, hardship, or both.  This includes debts caused by errors in pay to or on behalf of a soldier.  

CONCLUSIONS:

1.  The Board notes the applicant’s contention that the debt was incurred through no fault of his own, and that the payment of BAH-DIFF was authorized by the proper finance office officials based on their interpretation of the BAH policy outlined in the DODFMR, and it finds this claim has merit.  

2.  The evidence shows that the applicant should not have been entitled to receive BAH-DIFF while he was residing in government family quarters with his spouse.  This determination is supported by the ultimate decision of the responsible PERSCOM officials to deny the applicant’s application for remission or cancellation of his indebtedness. 

3.  However, the evidence of record also clearly establishes that the payment of this allowance to the applicant was authorized by the proper finance office officials who knew he was residing in family quarters based on their incorrect interpretation of the DODFMR.  A subsequent proper determination that the payment was erroneous was made by other finance officials, and supported by PERSCOM.  However, the Board believes that it would be unjust and inequitable to hold the applicant accountable for the mistakes made by the responsible military pay experts who originally authorized the erroneous payment.  

4.  The Board notes the PERSCOM denial of the applicant’s application for cancellation or remission of indebtedness.  However, because the memorandum announcing this decision failed to provide any specific logic for the decision, the Board was not able to rely heavily on this decision in arriving at a fair and equitable decision in this case.  

5.  By regulation, applications for remission or cancellation of indebtedness to the United States Army may be approved based on injustice, hardship, or both.  This includes debts caused by errors in pay to or on behalf of a soldier.  Given the applicant incurred this debt based on authorization errors made by the responsible finance officials, the Board concludes it would be unjust to hold him accountable for this debt.  Further, the applicant’s unit commander confirmed that payment of this debt would result in placing an undue financial hardship on the applicant and his family, and that cancellation of the debt would serve the best interest of the Army because it is the right thing to do.  

6.  In view of the facts of this case, the Board finds that the debt in question was incurred by the applicant through no fault of his own, and requiring him to repay the debt would be unjust and result in an undue financial hardship on the applicant and his family.  Therefore,  Board concludes that it would be appropriate to correct the applicant’s record to show his application for remission or cancellation of indebtedness to the United States Army was approved, and by reimbursing him any portion of the debt that has already been collected. 

7.  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 by showing that the application for remission/cancellation of indebtedness of 
$5, 379.62, due to overpayment of BAH-Diff, submitted by the individual concerned was approved for the full amount of the debt, and by reimbursing him any portion of the total debt that may have already been collected. 

BOARD VOTE:  

__JM__  __SLP___  __SAC__ GRANT AS STATED IN RECOMMENDATION

________  ________  ______  GRANT FORMAL HEARING

________  ________  _______DENY APPLICATION

		Samuel A. Crumpler 
		 CHAIRPERSON

INDEX

CASE ID	AR2003086367	
SUFFIX		
RECON		
DATE BOARDED	2003/06/DD	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  295	128.1200	
2.		
3.		
4.		
5.		
6.