PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            5 June 2003
	DOCKET NUMBER:   AR2002076832

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas B. Redfern		Member	
	Ms. Karen A. Heinz		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 the remission/cancellation of an unjust debt in the amount of $2,696.85. 

3.  The applicant states that while assigned to Korea, he was ordered to move off-post because of his rank.  The apartment selected was approved through government housing and 5 months later, it was determined to be unsuitable by the housing office and all military personnel were again ordered to move.  All deposits and unused rent were forfeited to the landlord.  Special permission was granted for another advance of pay for deposit monies with the assurance that any debt incurred would be waived by the government.  However, after he departed Korea, he received notice that he was being charged with the debt incurred because he did not repay his first advance.  In support of his application he submits documents showing that he has appealed the debt to the Defense Finance and Accounting Service (DFAS). 

4.  The applicant’s military records show that he initially enlisted on 26 October 1972 and served until he was honorably discharged on 2 November 1979.  He again enlisted on 3 March 1988 and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-7 on 1 July 1996 and on 9 August 1999, he was transferred to Korea.  He completed his tour in Korea on 9 August 2000 and was transferred to Fort Lewis, Washington.

5.  On 9 March 2001, his commander received a memorandum from the DFAS in Indianapolis, Indiana, indicating that the applicant had incurred a debt to the government in the amount of $2696.85, due to advances to pay for housing.

6.  On 26 March 2001, the applicant submitted a request for a waiver of erroneous payment through his chain of command and enclosed a memorandum from the Chief, Housing Division in Korea.  The memorandum indicates that the apartments where the applicant resided had been determined to be substandard and the command group imposed restrictive sanctions and relocated the tenants. The landlord refused to return unused rent or security deposits.  The Chief of the Housing Division requested that the applicant be relieved of his debt to the government.  The chain of command also supported the applicant's request.  However, the DFAS returned his request without action because the payment had not been made erroneously.  

7.  On 31 August 2001, the applicant was honorably released from active duty and was transferred to the Retired List effective 1 September 2001.  He had served 20 years, 7 months and 7 days of total active service.

8.  In response to an appeal by the applicant, on 14 May 2002, officials at     DFAS – Denver Center informed the applicant that he could apply to this Board.

9.  Army Regulation 600-4 serves as the authority for processing applications for remission of indebtedness.  It states, in pertinent part, that a debt to the government may be cancelled if it is determined that based on the information received, an injustice or hardship, or both exist.  It also states, that the soldier's awareness of policy and procedures will be considered as well as whether or not the soldier inquired of proper authority and was told that the payment was correct.

CONCLUSIONS:

1.  The evidence in this case clearly shows that the applicant was granted an advance of housing allowances to move off-post during his assignment to Korea in order to pay security deposits. The evidence also shows that the apartments were subsequently determined to be substandard and he was directed to relocate to another apartment after only 5 months.  He was again given an advance of housing allowances to pay for security deposits because the landlord refused to refund deposits and unused rent. 

2.  As a result, the applicant did not receive his security deposit or unused rent back, yet is being held responsible for re-paying the government for his first advance of housing allowances. 

3.  Although the Board agrees that the government has a responsibility to ensure that soldiers are housed in suitable facilities, especially where government monies are provided for such, the government also has a responsibility to ensure that soldiers are not unduly burdened or penalized when the government decides, after soldiers have made a contractual agreement with a landlord that was approved in advance by the government, that the quarters are inadequate and are ordered to relocate.  In doing so, the Army places an undue and unjust financial burden on the soldier.

4.  Accordingly, the Board finds that when the Army directed the applicant to move and authorized him a second advance of his housing allowances, it in effect, remitted or cancelled any debt that he incurred as a result of the actions by the government, which occurred when the landlord did not refund monies due the applicant that were scheduled for repayment to the government.

5.  Inasmuch as the government caused the loss of his security deposits and unused rent, the burden of the debt belongs to the government and not the soldier.  Therefore, the Board finds that he has no debt to the government and that all debts, interest and charges therefrom are invalid.

6.  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:

a.  by showing that the debt against  the individual concerned for advance of housing allowances was erroneously established and is invalid;

	b.  by refunding any funds collected as a result of the erroneous debt to the individual; and

c.  by correcting any adverse reports to the credit history of the individual concerned by showing to the agencies concerned that the demand was erroneous, and that the individual has no debt.

BOARD VOTE:  

__tbr____  __kh____  __ao____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Arthur A. Omartian____
		        CHAIRPERSON

INDEX

CASE ID	AR2002076832	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/06/05	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  293	128.1000/REMIT/CANCEL DEBT	
2.		
3.		
4.		
5.		
6.