MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           15 April 2003  
	DOCKET NUMBER:   AR2002081704

	I certify that hereinafter is recorded the record of consideration 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:

	Ms. Joann H. Langston		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Ms. Yolanda Maldonado		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, a waiver of her debt to government resulting from an overpayment of her basic allowance for housing (BAH).  

APPLICANT STATES:  In effect, that she was unaware of the erroneous BAH payment, and that the overpayment was the result of an administrative error on the part of the finance office.  The BAH she received was based on her area of assignment, Fort Gillem, Georgia, instead of her duty station location, Raleigh, North Carolina.  She claims that she was unaware of the error until October 2002, when she was informed of the debt by a transition clerk at Fort Bragg, North Carolina.  The applicant also contends that she was never made aware of the overpayment by her chain of command, and that these officials, who were located at Fort Gillem, were responsible for reviewing the leave and earning statements (LESs) of soldiers assigned to various recruiting stations prior to mailing them each month.  She further states that it is her belief that it was an honest error, but one that could cause her financial difficulty.  She claims that after her retirement in November 2002, her retired pay will be her only source of income and if the BAH overpayment is collected, it would create a financial hardship on her. 

EVIDENCE OF RECORD:  The applicant's military records show:

On 25 October 2002, a Pay Adjustment Authorization (DD Form 139) pertaining to the applicant was issued by the commander, 126th Finance Battalion, 
Fort Bragg.  This document indicated that the applicant was erroneously paid BAH based on a zip code of 30050 (Fort Gillem), and should have been paid based on the zip code 27604 (Raleigh).  This resulted in her being overpaid $2,768.68 during the period 15 June 1998 through 31 October 2002.

On the same date the DA Form 139 was issued, the applicant submitted a Waiver/Remission of Indebtedness Application (DD Form 2789).  She stated that she would be retired and unemployed as of 1 November 2002.  She claimed that her retired pay would be her only source of income to pay debts such as her mortgage and car payment, and payment of the debt to the Army would create financial difficulties.  In addition, she claimed that she was not at fault for the overpayment of BAH, and that her chain of command should have discovered the error during its monthly review of her LES.  

The applicant’s unit commander recommended approval of the applicant’s DD Form 2789.  He stated that the overpayment to the applicant was the result of an administrative oversight, and that the debt was incurred through no fault of the applicant.  

The commander of the 126th Finance Battalion, Fort Bragg, denied the applicant’s request for a waiver or remission of the debt.  He also provided a memorandum with detailed information in regard to the applicant’s indebtedness. It indicates that the debt charged to the applicant was valid and should be repaid to the government.  In addition, it explains that the applicant incurred a debt of $2,768.68 during the period 15 June 1998 through 31 October 2002, because she was being paid her BAH entitlement based on the zip code for her unit of assignment, Fort Gillem, Georgia, instead of the zip code for her duty station location, Raleigh, North Carolina.  It further indicates that the zip code for which a member receives BAH is listed on the LES under pay data, and BAH information is also available on the Defense Finance and Accounting Service (DFAS) web site.  Finally, it contains the conclusion that the applicant’s debt waiver should be denied, and considering the fact the applicant is currently retired and the entire debt has already been deducted from her separation leave payment, no financial hardship has been established that would support remitting the debt.

Title 10 of the United States Code, section 2774 (claims for overpayment of pay and allowances and of travel and transportation allowances) provides the statutory authority for the waiver of indebtedness arising out of an erroneous payment of any pay or allowances.  It states that the collection of any such debt which would be against equity and good conscience and not in the best interest of the government, may be waived in whole or in part by the Director of the Office of Management and Budget; or the Secretary concerned for an amount aggregating not more than $1,500.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board notes the applicant’s contention that the indebtedness to the Army for the erroneous payment of BAH is unjust and would result in her incurring a financial hardship.  However, the Board finds insufficient evidence to support this claim. 

2.  The evidence of record confirms that the applicant received a BAH in excess of that authorized for her duty location, between 15 June 1998 and 31 October 2002, which confirms that the debt she incurred to the Army was valid.  Further, notwithstanding the applicant’s claim that she was not at fault for the debt, and it was the responsibility of her chain of command to review her monthly LES and inform her of the overpayment , there is no evidence to show that the applicant did not receive her monthly LESs during this period.  

3.  While the applicant’s chain of command exercised some oversight review of the pay documents in question, the primary responsibility for ensuring the accuracy of her monthly pay and allowances rested with the applicant.  Her monthly LESs clearly listed the zip code on which her BAH payment was being made and as a result, the Board concludes that the applicant was or should have been aware that she was receiving her BAH based on the wrong location.  

4.  In addition, the Board carefully considered the applicant’s claim that collection of the debt would result in her unjustly facing financial difficulties.  However, the evidence shows that the full debt was collected at the time of her separation and the applicant has failed to provide any independent evidence to show that she has or will face an unreasonable financial burden as a result of her repaying her valid debt to the Army.  Thus, the Board concludes that the requested relief is not warranted in this case. 

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___rtd___  __ym____  ___jhl___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002081704	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/04/15	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  295	128.1200/BAH	
2.		
3.		
4.		
5.		
6.