BOARD DATE: 19 November 2015 DOCKET NUMBER: AR20150014780 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests relief from a $42,134.22 debt due to overpayment of basic allowance for housing (BAH). 2. The applicant states: a. He was overpaid BAH from July 2012 through December 2014. The Fort Wainwright, AK Finance Department determined that he was entitled to $8.70 in BAH differential for this time period; however, their computation sheet stopped at the end of 2013. b. According to the BAH differential chart pay chart for 2012 through 2014, he was entitled to $242.10 for 2012, $246.30 for 2013, $248.70 for 2014, and $292.20 for 2014 as a staff sergeant (SSG). c. He completed numerous DA Forms 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ), and/or Variable Housing Allowance) and followed up to correct this matter and the unit commanders finance reports were unverified. Each time he submitted a DA Form 5960, he was told it was processed. d. The finance offices at his previous units failed to make the correct changes. This payment of this debt will make him and his wife, a noncommissioned officer, less effective. He references AR 600-4 (Remission or Cancellation of Indebtedness), paragraph 1-12, which states that a hardship may be caused by a Soldier’s contribution to the indebtedness to the U.S. Army by not having the situation corrected. 3. The applicant provides: * Information pertaining to BAH rates * memorandum, subject: Remission or Cancellation of Indebtedness: [Applicant], issued by Defense Finance Accounting Service (DFAS), Indianapolis, IN, dated 28 July 2015 * memorandum, subject: Remission or Cancellation of Indebtedness – [Applicant], issued by U.S. Army Human Resources Command (AHRC), Fort Knox, KY, dated 28 July 2015 * Memorandum For Record (MFR), subject: Remission or Cancellation of Indebtedness [applicant], issued by 1st Battalion, 5th Infantry Regiment, Fort Wainwright, AK, dated 19 March 2015 * MFR, subject: Debt Remission or Cancellation Recommendation, issued by 1st Battalion, 5th Infantry Regiment, Fort Wainwright, AK, dated 24 March 2015 * DA Form 2823 (Sworn Statement) * DD form 1351-2 (Travel Voucher or Subvoucher) * DA Form 5960 * DA Form 3508 (Application for Remission or Cancellation of Indebtedness) * orders * pay records CONSIDERATION OF EVIDENCE: 1. The applicant is a Regular Army SSG. 2. On 30 January 2015, he submitted a DA Form 3508. 3. A memorandum, subject: Remission or Cancellation of Indebtedness for [Applicant], issued by 1st Battalion, 5th Infantry Regiment, Fort Wainwright, AK, dated 19 March 2015, shows his company commander stated: a. He did not support remission or cancellation of indebtedness for the applicant. b. Based on the sworn statement given to him by the applicant, the applicant identified the discrepancy in his pay and identified that he was being overpaid in 2012 and he continued to receive overpayment until he moved to Fort Wainwright, AK. He made multiple attempts to correct the error. c. Despite knowing that he was being overpaid, the applicant continued to spend the additional money. d. He supported a payment plan that would allow the applicant to pay back the complete amount over a course of time. 4. In a memorandum, subject: Debt Remission or Cancellation Recommendation, issued by 1st Battalion, 5th Infantry Regiment, Fort Wainwright, AK, dated 24 March 2015, the applicant’s battalion commander supported a debt repayment plan. He stated that a lump sum payment plan would put a heavier burden on the applicant and his family. 5. A memorandum, subject: Remission or Cancellation of Indebtedness [Applicant], issued by AHRC, dated 28 July 2015, stated: a. The application for remission or cancellation of indebtedness for the applicant in the amount of $42,134.22 had been reviewed and was disapproved. The review determined that no grounds existed to remit or cancel the debt based on hardship and/or injustice. b. The applicant could apply to the Army Board for Correction of Military Records for further review if he felt an injustice occurred. 6. In the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C. That advisory opinion stated: a. Based on a careful review of the facts surrounding this situation, it was recommended that the Army Review Boards Agency disapprove the applicant’s request for cancellation of his $42,134.22 debt. b. The DFAS found that the applicant continually received erroneous BAH and that even though he knew this was the case, he continued to spend the money. c. The applicant did make attempts to correct the matter. He clearly understood that he was being overpaid, and though he made attempts to rectify the situation, he was not relieved of the responsibility to save the money for eventual repayment. d. The DFAS was reasonable in its analysis that the applicant must pay his debt and there was nothing in the packet to show otherwise. 7. A copy of the advisory opinion was provided to the applicant for comments or a rebuttal. A response was not received. 8. He states that the amount of the debt is incorrect; however, he did not submit any evidence showing his debt was computed incorrectly. 9. Army Regulation 600-4 gives instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army. Applications must be based on injustice, hardship, or both. The Army may remit or cancel a Soldier's debt arising from payments made in error, payments made in excess of an allowance on behalf of a Soldier, or debts incurred while serving on active duty. To determine injustice the application must contain evidence that the applicant did not know and could not have known of the error and/or the applicant inquired of a proper authority and was told the payment was correct. To determine injustice or hardship HRC must consider the Soldier's awareness of policy and procedures, military occupational specialty, rank, years of service, and prior experience. DISCUSSION AND CONCLUSIONS: 1. The applicant requests relief from a $42,134.22 debt he owes for overpayment of BAH. His request for remission of the debt was denied. 2. It is clear that DFAS erred by not stopping his BAH payments in a timely manner. It is also clear that he was aware of the problem throughout the period during which he received the erroneous payments. 3. He admits that he was overpaid BAH from July 2014 through December 2014. 4. It appears he believes the basis for remission or cancellation of his debt is DFAS's failure to stop his BAH payments in a timely manner. The delay, while unfortunate, does not constitute an injustice, and there is no evidence that this debt has created a hardship. It is reasonable to expect that he would have anticipated the establishment of a debt and would have set aside the erroneous BAH payments to immediately resolve the debt when it was established. 5. Although he states that he tried to correct the error, his attempt to rectify the error did not relieve him of the responsibility to save the money for repayment. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X_____ __X______ __X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ X _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150014780 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150014780 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1