PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           6 March 2003
	DOCKET NUMBER:   AR2002079383

	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. Walter T. Morrison		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Frank C. Jones, II		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, that he be reimbursed $1,650.56 that was erroneously collected from his pay.  

3.  The applicant states, in effect, that he became indebted to the government in the amount of $7,322.40 as a result of an overpayment of Basic Allowance for Housing (BAH).  He claims that the debt was incurred through no fault of his own and a request for the remission/cancellation of the indebtedness was resolved in his favor by officials at the Total Army Personnel Command (PERSCOM).  However, because $1,650.40 of the debt had been collected prior to the unit commander signing the Application for Remission or Cancellation of Indebtedness (DA Form 3598-R), the regulation prohibited PERSCOM from approving cancellation of the collected portion of the debt.  

4.  The applicant’s military record show that as of the date of his application to this Board, he was serving on active duty and assigned to the Security Force, Fort Detrick, Maryland.  It also shows that upon his entry on active duty in December 1999, he was informed by finance personnel at the reception station, Fort Jackson, South Carolina, that he was entitled to BAH and family separation pay because he had a daughter.  At that time, he informed these pay officials that his daughter did not reside with him and that he paid monthly child support payments, and he provided them the court documents at that time. 

5.  In April 2001, his platoon sergeant noticed that the applicant was receiving BAH benefits to which he was not entitled.  His platoon sergeant explained that he should not have been receiving full BAH, but rather a BAH differential based on his providing child support for his daughter.  At the time, the applicant immediately contacted local finance officials in Germany, and informed them of this overpayment.  At that time, these finance officials informed him that he was indebted to the government in the amount of $9,826.93.  The family separation allowance portion of the debt was prorated for six months and collected; however, the $7,322.40 BAH portion of the debt was suspended.

6.  In June 2001, the applicant was deployed to Bosnia, and while there he checked on the status of his debt with the local finance office.  A noncommissioned officer (NCO) at this finance office, after discovering that the applicant had never been informed of or offered the opportunity to submit an application for remission or cancellation of indebtedness, DA Form 3508-R when the debt was discovered in Germany, assisted him in the preparation of his DA Form 3508-R.  In August 2001, the completed DA Form 3508-R was forwarded to his parent unit in Germany, and he was advised that the application had been signed by the unit commander and processed.

7.  In October 2001, the applicant’s unit commander in Germany submitted a memorandum to the finance officer requesting that the applicant’s debt be cancelled.  He explained that the applicant reported the overpayment as soon as he found the error in April 2001, and had attempted to resolve the problem ever since.  The unit commander further stated that repayment of this debt to the government would cause the applicant significant financial hardship, and since the debt was incurred through no fault of the applicant, it would be appropriate to cancel the debt.  

8.  In December 2001, upon his return to his parent unit in Germany, the applicant immediately checked into the status of his application for remission or cancellation of indebtedness, and he was informed that his DA Form 3508-R was still in the unit and waiting to go to finance.  At this time, since he was departing on a permanent change of station (PCS) in a few weeks, unit personnel officials advised him to wait until he arrived at his new duty station to submit his DA Form 3508-R.

9.  In February 2002, upon his arrival at his new duty station at Fort Detrick, Maryland, he informed local officials of his pay problem and debt, and because there was no local finance office, his inquiry was forwarded directly to Defense Finance and Accounting Service (DFAS) office in Indianapolis, Indiana.

10.   In April 2002, DFAS, Indianapolis pay officials sent the applicant’s unit commander a notice of indebtedness memorandum pertaining to the applicant .  It stated that the applicant’s indebtedness was originally input in May 2001, and that it had been suspended since June 2001.  The unit commander was notified of the collection process and of the applicant’s right to submit a DA Form 3508-R, and it was requested that he contact the applicant not later than 4 May 2002, in order to determine what action was to be taken to satisfy the debt.  At this time, a new application for remission or cancellation of indebtedness was completed and singed by the applicant on 17 May 2002.  The applicant’s unit commander verified and signed the DA Form 3508-R on 23 May 2002.  

11.  On 16 August 2002, the Chief Special Actions Branch, PERSCOM, notified the DFAS, Indianapolis center that the applicant’s request for remission or cancellation of indebtedness was approved for $5,671.84.  It also indicated that since $1,650.56 of the indebtedness was collected prior to the unit commander’s signature on the application, it could not be considered for remission or cancellation under the provisions of the governing regulation.  However, it+ further stated that if the applicant felt an injustice had occurred surrounding the collected portion of the debt, he could apply to this Board for relief.  

12.  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.  Chapter 3 provides the administrative procedures for submitting an application for remission/cancellation of indebtedness.  Paragraph 3-4 outlines the responsibilities of the Finance and Accounting Officer in the application process.  It states, in pertinent part, that he/she will ensure collection of the debt is stopped until a final decision is made.

CONCLUSIONS:

1.  The Board notes the applicant’s contention that since the debt was incurred through no fault of his own, it should have been suspended prior to any collections while his application for remission or cancellation of debt was processing, and that he should now be reimbursed for the collected portion of the debt, and it finds this claim has merit. 

2.  By regulation, if a soldier decides to submit an application for remission or cancellation of indebtedness, and properly notifies unit and finance officials, the debt collection process should be suspended until a final decision is made on the application.  The evidence of record confirms that once the applicant was notified that he was indebted to the government in the amount of $7,322.40, due to an overpayment of BAH, he immediately attempted to resolve the pay issue and that he began the process of preparing and submitting an application for remission or cancellation of indebtedness as soon as he was made aware of this process.  

3.  A February 2001 memorandum prepared by the applicant’s unit commander at the time, exonerated the applicant of any fault for the debt and formalized the command position in support of the remission or cancellation of the applicant’s indebtedness.  It is also clear that the applicant was not immediately counseled on his right to submit an application for remission or cancellation of indebtedness.  Further, it is evident that once he was made aware of his right to submit this application, he immediately did so.  However, the DA Form 3508-R properly process by unit personnel officials, signed by his unit commander, and submitted in a timely manner.  

4.  In view of the facts of this case, and given the applicant’s request for remission or cancellation of indebtedness was ultimately approved by PERSCOM on the merits, for the uncollected portion of the debt, the Board concludes that it would be appropriate to grant the requested relief at this time. 

5.  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 of the individual concerned for remission/cancellation of indebtedness of  $7,322.40, due to an overpayment of BAH, was approved for the full amount of the debt; and by reimbursing the applicant any portion of the total debt that was collected. 

BOARD VOTE:  

__WTM__  __LDS _  __ FCJ__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_  Walter T. Morrison  ._
		       CHAIRPERSON

INDEX

CASE ID	AR2002079383	
SUFFIX		
RECON		
DATE BOARDED	2002/03/06	
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.  293	128.1000	
2.		
3.		
4.		
5.		
6.